Monday 6th June 2016
(8 years, 6 months ago)
Commons ChamberRead Hansard Text Read Debate Ministerial Extracts Amendment Paper: Manuscript Amendments 6 June 2016 (PDF, 16KB) - (6 Jun 2016)
20:01 - The House divided: - Ayes: 64 / Noes: 278 - Question accordingly negatived.
20:13 - The House divided: - Ayes: 64 / Noes: 281 - Question accordingly negatived.
20:27 - The House divided: - Ayes: 67 / Noes: 281 - Question accordingly negatived.
23:01 - The House divided: - Ayes: 67 / Noes: 271 - Question accordingly negatived.
23:14 - The House divided: - Ayes: 66 / Noes: 272 - Question accordingly negatived.
The Minister for Security (Mr John Hayes)
I beg to move, That the clause be read a Second time.
Mr Speaker
With this it will be convenient to discuss the following:
Government new clause 6—Civil liability for certain unlawful interceptions.
New clause 4—Offence of unlawful use of investigatory powers—
“(1) A relevant person is guilty of an offence if—
(a) by way of conduct described in this Act, he knowingly or recklessly obtains the communications, communications data, secondary data, equipment data or personal information of an individual, and
(b) the person does not have lawful authority to make use of the investigatory power concerned.
(2) Subsection (1) does not apply to a relevant person who shows that the person acted in the reasonable belief that the person had lawful authority to obtain the information referred to in subsection (1)(a).
(3) In this section “relevant person” means a person who holds an office, rank or position with a relevant public authority (within the meaning of Part 3).
(4) A person guilty of an offence under this section is liable—
(a) on summary conviction in England and Wales—
(i) to imprisonment for a term not exceeding 12 months (or 6 months, if the offence was committed before the commencement of section 154(1) of the Criminal Justice Act 2003), or
(ii) to a fine, or to both;
(b) on summary conviction in Scotland—
(i) to imprisonment for a term not exceeding 12 months, or
(ii) to a fine not exceeding the statutory maximum, or to both;
(c) on summary conviction in Northern Ireland—
(i) to imprisonment for a term not exceeding 6 months, or
(ii) to a fine not exceeding the statutory maximum, or to both;
(d) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine, or to both.
(5) The offence in this section shall have precedence over any other relevant offences in the Data Protection Act 1998, Wireless Telegraphy Act 2006, Computer Misuse Act 1990, and the common law offence of misfeasance in public office.”
On behalf of the Intelligence and Security Committee of Parliament, to provide for a unified offence for the misuse of intrusive investigatory powers at the beginning of the Bill, in Part 1, rather than having each offence scattered throughout the Bill or in other legislation.
New clause 21—General duties in relation to privacy—
“(1) Subsection (2) applies where a public authority is deciding whether—
(a) to issue, renew or cancel a warrant under Part 2, 5, 6 or 7,
(b) to modify such a warrant,
(c) to approve a decision to issue, renew or modify such a warrant,
(d) to grant, approve or cancel an authorisation under Part 3,
(e) to give a notice in pursuance of such an authorisation or under Part 4 or section 216, 217 or 220,
(f) to vary or revoke such a notice,
(g) to approve a decision to give a notice under section 216 or 217, or
(h) to apply for or otherwise seek any issue, grant, giving, modification, variation or renewal of a kind falling within paragraph (a), (b), (d), (e) or (f).
(2) The public authority must give effect to—
(a) the requirements of the Human Rights Act 1998, and
(b) other requirements of public law.
(3) The public authority must also have regard to—
(a) whether what is sought to be achieved by the warrant, authorisation or notice could reasonably be achieved by other less intrusive means,
(b) the public interest in the integrity and security of telecommunication systems and postal services, and
(c) any other aspects of the public interest in the protection of privacy.
(4) The duties under subsection (3)—
(a) apply so far as they are relevant in the particular context, and
(b) are subject to the need to have regard to other considerations that are also relevant in that context.
(5) The other considerations may, in particular, include—
(a) the interests of national security or of the economic well-being of the United Kingdom,
(b) the public interest in preventing or detecting serious crime,
(c) other considerations which are relevant to—
(i) whether the conduct authorised or required by the warrant, authorisation or notice is proportionate, or
(ii) whether it is necessary to act for a purpose provided for by this Act.
(6) In this section “public authority” includes the relevant judicial authority (within the meaning of section 66) where the relevant judicial authority is deciding whether to approve under that section an authorisation under Part 3.”
This new clause sets out general duties in relation to privacy.
Amendment 14, in clause 1, page 1, line 4, at end insert—
“( ) This Act sets out the extent to which certain investigatory powers may be used to interfere with an individual’s privacy.”
On behalf of the Intelligence and Security Committee of Parliament, to place privacy at the forefront of the legislation.
Government amendments 26 to 34.
New clause 1—Notification by the Investigatory Powers Commissioner—
“(1) The Investigatory Powers Commissioner is to notify the subject or subjects of investigatory powers relating to the statutory functions identified in section 196, subsections (1), (2) and (3), including—
(a) the interception or examination of communications,
(b) the retention, accessing or examination of communications data or secondary data,
(c) equipment interference,
(d) access or examination of data retrieved from a bulk personal dataset,
(e) covert human intelligence sources,
(f) entry or interference with property.
(2) The Investigatory Powers Commissioner must only notify subjects of investigatory powers under subsection (1) upon completion of the relevant conduct or the cancellation of the authorisation or warrant.
(3) The notification under subsection (1) must be sent by writing within thirty days of the completion of the relevant conduct or cancellation of the authorisation or warrant.
(4) The Investigatory Powers Commissioner must issue the notification under subsection (1) in writing, including details of—
(a) the conduct that has taken place, and
(b) the provisions under which the conduct has taken place, and
(c) any known errors that took place within the course of the conduct.
(5) The Investigatory Powers Commissioner may postpone the notification under subsection (1) beyond the time limit under subsection (3) if the Commissioner assesses that notification may defeat the purposes of an on-going serious crime or national security operation or investigation.
(6) The Investigatory Powers Commissioner must consult with the person to whom the warrant is addressed in order to fulfil an assessment under subsection (5).”
New clause 2—Referrals by the Intelligence and Security Committee of Parliament—
“(1) Subsection (2) applies if the Intelligence and Security Committee of Parliament refers a matter to the Investigatory Powers Commissioner.
(2) The Investigatory Powers Commissioner must inform the Intelligence and Security Committee of Parliament of the outcome of any investigation, inspection or audit arising from such a referral.”
To allow the Intelligence and Security Committee to refer matters, on behalf of Parliament, to the Commissioner and to provide a mechanism for the Committee to be informed of the outcome.
New clause 16—Investigatory Powers Commissioner: obligation to notify—
“(1) The Investigatory Powers Commissioner is to notify the subject or subjects of investigatory powers relating to the statutory functions identified in section 196, subsections (1), (2) and (3), including—
(a) the interception or examination of communications,
(b) the retention, accessing or examination of communications data or secondary data,
(a) equipment interference,
(b) access or examination of data retrieved from a bulk personal dataset.
(2) The Investigatory Powers Commissioner must only notify subjects of investigatory powers under subsection (1) upon completion of the relevant conduct or the cancellation of the authorisation or warrant.
(3) The notification under subsection (1) must be sent by writing within ninety days of the completion of the relevant conduct or cancellation of the authorisation or warrant.
(4) The Investigatory Powers Commissioner must issue the notification under subsection (1) in writing, including details of the provisions under which the conduct has taken place.
(5) The Investigatory Powers Commissioner may postpone the notification under subsection (1) beyond the time limit under subsection (3) if the Commissioner assesses that notification may defeat the purposes of the on-going serious crime or national security operation or investigation.
(6) The Investigatory Powers Commissioner must consult with the person to whom the warrant is addressed in order to fulfil an assessment under subsection (5).”
This new Clause would ensure that individuals are informed after the event that they have been a subject of investigatory powers.
Amendment 465, in clause 194, page 149, line 7, at end insert—
“( ) There shall be a body corporate known as the Investigatory Powers Commission.
( ) The Investigatory Powers Commission shall have such powers and duties as shall be specified in this Act.”
See amendment 469.
Amendment 466, page 149, line 12, at end insert—
“(1A) The Investigatory Powers Commissioner must appoint—
(a) the Chief Inspector, and
(b) such number of Inspectors as the Investigatory Powers Commissioner considers necessary for the carrying out of the functions of the Investigatory Powers Commission.
(1B) In appointing Investigators the Investigatory Powers Commissioner shall—
(a) appoint an individual only if the Investigatory Powers Commissioner thinks that the individual—
(i) has experience or knowledge relating to a relevant matter, and
(ii) is suitable for appointment,
(b) have regard to the desirability of the Investigators together having experience and knowledge relating to the relevant matters.
(1C) For the purposes of subsection (2)(a) the relevant matters are those matters in respect of which the Investigatory Powers Commission has functions including, in particular—
(a) national security;
(b) the prevention and detection of serious crime;
(c) the protection of privacy and the integrity of personal data;
(d) the security and integrity of computer systems and networks;
(e) the law, in particular, as it relates to the matters in subsections (-)(a) – (b);
(f) human rights as defined in Section 9(2) of the Equality Act 2006.”
See amendment 469.
Amendment 295, page 149, line 19, leave out paragraph (a).
A paving amendment for the proposed requirement on the Prime Minister to act on the recommendation of the relevant chief justice when appointing Judicial Commissioners.
Amendment 296, page 149, line 20, leave out paragraph (b).
A paving amendment for the proposed requirement on the Prime Minister to act on the recommendation of the relevant chief justice when appointing Judicial Commissioners.
Amendment 297, page 149, line 21, leave out paragraph (c).
A paving amendment for the proposed requirement on the Prime Minister to act on the recommendation of the relevant chief justice when appointing Judicial Commissioners.
Amendment 7, page 149, line 23, at end insert—
“(3A) The term of office of a person appointed under subsection (1)(a) as Investigatory Powers Commissioner must not begin before the Intelligence and Security Committee of Parliament has consented to the proposed appointee.”
This amendment would require the appointment of the Investigatory Powers Commissioner to be agreed by the Intelligence and Security Committee of Parliament.
Amendment 298, page 149, line 28, at end insert—
“(5A) When appointing any person under subsection (1), the Prime Minister must act on the recommendation of—
(a) the Lord Chief Justice of England and Wales, in relation to Judicial Commissioners appointed from England and Wales,
(b) the Lord President of the Court of Session, in relation to Judicial Commissioners appointed from Scotland, and
(c) the Lord Chief Justice of Northern Ireland, in relation to Judicial Commissioners appointed from Northern Ireland.”
An amendment to require the Prime Minister to act on the recommendation of the Lord Chief Justice of England and Wales, the Lord President of the court of Session, or the Lord Chief Justice of Northern Ireland, when appointing Judicial Commissioners.
Amendment 146, page 149, line 35, at end insert—
“(7A) The Investigatory Powers Commissioner shall ensure that all judicial authorisation functions under this Act are carried out by different Commissioners from those who carry out the audit and inspection functions set out in this Part.”
This amendment requires the Investigatory Powers Commissioner to ensure the separation of the judicial authorisation function from the ex post audit and inspection function..
Amendment 467, page 149, line 35, at end insert—
“(7A) The Prime Minister may make an appointment under subsection (1) only following a recommendation by—
(a) The Judicial Appointments Commission;
(b) The Judicial Appointments Board of Scotland; or
(c) The Northern Ireland Judicial Appointments Commission.”
See amendment 469.
Amendment 468, page 149, line 35, at end insert—
“(7A) The Chief Inspector is an Inspector and the Chief Inspector and the other Inspector are to be known, collectively, as the Inspectors.”
See amendment 469.
Amendment 469, page 150, line 2, at end insert—
“(c) to the Investigatory Powers Commission are to be read as appropriate to refer to the body corporate, the Investigatory Powers Commission, and in so far as it will refer to the conduct of powers, duties and functions, those shall be conducted by either the Judicial Commissioners or the Inspectors as determined by this Act or by the Investigatory Powers Commissioner, consistent with the provisions of this Act.”
The purpose of these amendments is to replace the proposal to create an Investigatory Powers Commissioner with provisions to create a new Investigatory Powers Commission. They would provide that no appointment can be made except pursuant to a recommendation by the independent bodies in England and Wales, Scotland and Northern Ireland tasked with making judicial appointments in those jurisdictions.
Government amendment 35.
Amendment 8, in clause 196, page 152, line 9, at end insert—
“(4A) In keeping matters under review in accordance with this section, the Investigatory Powers Commissioner must, in particular, keep under review the operation of safeguards to protect privacy.”
On behalf of the Intelligence and Security Committee of Parliament, to make explicit that the Investigatory Powers Commissioner is required to scrutinise the underlying safeguards, procedures and processes relating to bulk powers, including the arrangements for the protection of, and control of access to, material obtained through their use.
Amendment 18, in clause 197, page 153, line 8, after “Commissioner”, insert
“or the Intelligence and Security Committee of Parliament.”
On behalf of the Intelligence and Security Committee of Parliament, to allow the Prime Minister to issue directions at the request of the ISC (in addition to the Commissioner).
Amendment 189, in clause 198, page 153, line 21, leave out
“if the Commissioner considers that—”.
See amendment 195.
Amendment 472, page 153, line 21, leave out from “aware” to end of line 24.
See amendment 477.
Amendment 190, page 153, leave out line 23.
See amendment 195.
Amendment 191, page 153, leave out line 24.
See amendment 195.
Amendment 473, page 153, line 25, leave out subsections (2) to (5) and insert—
“(2) The Investigatory Powers Commissioner may decide not to inform a person of an error in exceptional circumstances.
(1) Exceptional circumstances under subsection (1) will arise if the public interest in disclosure is outweighed by a significant prejudice to—
(a) national security, or
(b) the prevention and detection of serious crime.”
See amendment 477.
Amendment 192, page 153, line 25, leave out subsection (2).
See amendment 195.
Amendment 193, page 153, line 29, leave out subsection (3).
See amendment 195.
Amendment 194, page 153, line 32, leave out subsection (4).
See amendment 195.
Amendment 474, page 153, line 44, at end insert—
“(5A) Provide the person with such details of the submissions made by the public authority on the error and on the matters concerned pursuant to subsection (5) as are necessary to inform a complaint to the Investigatory Powers Tribunal.”
See amendment 477.
Amendment 195, page 154, line 6, leave out from “having” to end of line 9.
These amendments will remove excessive restrictions on the Investigatory Powers Commissioner to instruct and inform individuals who have been subject to surveillance and will ensure that they are always notified of that fact when unlawful errors occur.
Amendment 2, page 154, line 10, leave out subsection (7).
Amendment 476, page 154, line 16, leave out paragraph (b).
See amendment 477.
Amendment 477, page 154, line 23, leave out paragraph (b).
These amendments would amend the Bill to provide for the Commissioner to notify any relevant person of any error made pursuant to the activities in the Bill, in order to allow those individuals to consider whether a claim may lie to the Investigatory Powers Tribunal for redress. It makes provision for non-disclosure in circumstances where the public interest in disclosure would be outweighed by a significant risk of prejudice to national security or the prevention and detection of crime.
Amendment 479, in clause 199, page 154, line 28, leave out “Judicial Commissioner” and insert “Investigatory Powers Commission”.
See amendment 481.
Amendment 478, page 154, line 34, at end insert—
“(1A) A Judicial Commissioner may refer to the Investigatory Powers Tribunal any matter the Commissioner considers may have involved the unlawful use of investigatory powers.”
See amendment 481.
Amendment 480, page 154, line 35, leave out “Judicial Commissioner” and insert “Investigatory Powers Commission”.
See amendment 481.
Amendment 481, page 154, line 38, leave out subsections (3) and (4) and insert—
“(3) In any circumstances where the Commission has identified a relevant error pursuant to section 198, the Commission must give such documents, information or other material as may be relevant to the investigation of the error to the Tribunal.
(4) The duty in subsection (3) shall be exercised without request from the Tribunal.”
These amendments would remove the requirement to consult the Secretary of State and would make clear that in circumstances where a relevant error has been identified, material should be provided to the Tribunal by the Commission. It would make clear that any potentially unlawful use of the powers in this Act may be referred to the Tribunal by the Commissioners. These amendments would remove the requirement to consult the Secretary of State before giving assistance direct to other public authorities.
Amendment 482, in clause 203, page 159, line 2, at end insert—
“(1A) A disclosure pursuant to subsection (1) will not constitute a criminal offence for any purposes in this Act or in any other enactment.
(1B) In subsection (1), a disclosure for the purposes of any function of the Commissioner may be made at the initiative of the person making the disclosure and without need for request by the Investigatory Powers Commissioner.”
This amendment would make it clear that voluntary, unsolicited disclosures are protected, and that any whistle-blower is also protected from criminal prosecution.
Amendment 483, in clause 208, page 160, line 29, after “determination” insert
“or ruling or decision, including relating to a procedural matter.”
See amendment 486.
Amendment 484, page 160, line 29, leave out from “Tribunal” to the end of line 30.
See amendment 486.
Amendment 485, page 161, line 8, leave out subsection (6).
See amendment 486.
Amendment 486, page 162, line 38, at end insert—
“(6) After section 68(1) of the Regulation of Investigatory Powers Act 2000, insert—
(1A) Any hearing conducted by the Tribunal must be conducted in public, except where a special proceeding is justified in the public interest.
(1B) Any determination by the Tribunal must be made public, except where a special proceeding may be justified in the public interest.
(1C) A special proceeding will be in the public interest only where there is no alternative means to protect sensitive material from disclosure.
(1D) Material will be sensitive material for the purposes of this Section if its disclosure would seriously prejudice (a) national security or (b) the prevention and detection of crime.
(1E) Publication for the purposes of this Section will be seriously prejudicial if it would lead to a significant threat to life or of a serious physical injury to a person.
(1F) The Tribunal shall appoint a person to represent the interests of a party in any special proceedings from which the party (and any legal representative of the party) is excluded.
(1G) Such a person will be known as a Special Advocate.”
These amendments make clear that all decisions, determinations and rulings can be appealed on a point of law.
Amendment 487, page 162, line 38, at end insert—
“(6) After Section 4(5)(f) of the Human Rights Act 1998 insert—
‘(g) the Investigatory Powers Tribunal.’”
This amendment makes clear that all decisions, determinations and rulings can be appealed on a point of law.
Government amendments 36 to 43 and 48.
Mr Speaker
The Minister now has a second opportunity to practise his oratory.
Mr Hayes
As you know, Mr Speaker, practice makes perfect, and we have two days to perfect all we do and say.
We open the debate on the Bill with a group of provisions that address a matter which lies at its very heart. Throughout the lengthy consideration the Bill has enjoyed in its draft form and its final form, the issue of privacy, and the balance between security and private interest, has been frequently considered and debated. The balance that lies at the heart of our considerations and the proposed legislation is critical to the acceptance we need to engender for a Bill that is in the national interest.
The word “balance” was used by the hon. Member for City of Chester (Christian Matheson) during the Committee’s scrutiny of the Bill. He talked about the balance between national interest and personal interest— in my terms, the defence of personal privacy and the underpinning of the common good. For me, communal wellbeing and individual fulfilment are inseparable, and the national interest can only be defined as the people’s interest. It is right that we should consider how that balance is reflected in the words before us. The issues of privacy and oversight are central to our considerations, and the Government are determined to ensure that the Bill reflects the concentration on those two matters.
We are clear that, in considering and passing the Bill, we must do more—more in respect of checks and balances, more in respect of safeguards and more in respect of oversight, and that is indeed what we have tried to do in the provisions we are considering. It is important to understand that privacy is at the very core of the Bill—it runs through its very fabric. The protection of private interests and the protection of the public are at the heart of all we seek to do.
In Committee, the hon. and learned Member for Holborn and St Pancras (Keir Starmer) tabled a new clause to strike a balance on this issue in sympathy with my view that privacy is woven throughout the Bill’s provisions. I have concluded that he was right to emphasise the need to make that palpably clear on the face of the legislation; to seek to reinforce the determination that I have described to protect private interest. It seemed to me that he was also right to suggest that that should be an overarching aspect of the Bill—in other words, that we should, explicitly, at the outset of this legislation, make it clear that privacy matters in the way that I have described. He therefore suggested—indeed, he has tabled an amendment today, too—that we add to the Bill just such an overarching emphasis on the defence of private interests.
By underpinning the powers and the sensitive capabilities available to our law enforcement and security services, the Bill provides—as successive Governments have, by the way—an appropriate degree of oversight of those powers. Furthermore, through the change to authorisation, we have, for the first time, and in highly significant—one might even say groundbreaking—terms, struck an important balance between the role of the Executive and the role of the judiciary. That answers the call of those who, on the one hand, made the case in our earlier considerations that it is politicians who should decide these things because they are accountable to the people and those who, on the other hand, felt that that alone was not sufficient and that it was also important for lawyers to play their part in ensuring that decisions made in respect of warranting were reasonable, necessary and proportionate. The core principle—the necessity of proportionality—therefore applies to all such powers. It is underpinned by the changes that we seek to make in the Bill.
In essence, the provisions reflect the collective consideration of the three independent reviews I mentioned briefly in our short consideration of the programme motion. The Intelligence and Security Committee’s report on the draft Bill, which was published last year, called for the inclusion of an overarching clause dealing with privacy protections, and that call was echoed by the Opposition and the Scottish National party during the Committee stage.
The Government have been clear throughout the passage of the Bill that they would listen to recommendations that would improve this important proposed legislation, and that is just what we have done. We have tabled a number of amendments that demonstrate exactly that willingness to listen and that desire to strike the right balance.
Government amendment 34 relates to clause 10, an important safeguard in the Bill that prevents numerous powers in other legislation from being used to acquire communications data. There are a small number of exceptions to that restriction, and the purpose of the amendment is to ensure that they are clearly limited. The amendment therefore makes it absolutely clear that the use of regulatory powers to acquire communications data is limited to those that are exercisable in connection with telecommunications or postal regulation.
Government amendment 35 extends the oversight provided by the Investigatory Powers Commissioner to all efforts made by prison governors to prevent the use of illegal mobile phones in custodial institutions. That is something that the Interception of Communications Commissioner has previously called for, so I am pleased to be able to amend the Bill to take account of his advice. The amendment will also ensure that the Investigatory Powers Commissioner has oversight of any interference with electronic communications.
That issue was raised in Committee by the hon. and learned Member for Edinburgh South West (Joanna Cherry) and I said that we would give it further consideration. We have done so and come to the conclusion that her argument is right. Although this tort would apply only to very limited circumstances—indeed, we believe that it has never been used—I accept that in such cases a person should have the power to seek appropriate redress through the civil courts.
Probably the most important amendment tabled by the Government is new clause 5—the privacy clause to which I referred at the outset. It puts privacy at the heart of the Bill in precisely the overarching way that those who scrutinised it prior to and during Committee recommended. It responds, therefore, both to the recommendations of the Intelligence and Security Committee and to the extensive debates held since then. As we have indicated, the protection of privacy is woven throughout the Bill, but we recognise the merit in setting it out at the very start.
I do not want to indulge in hyperbole, but consideration of the Bill has been characterised by an unusual degree of co-operation to get it right across the House. All legislation benefits from that kind of considered scrutiny and co-operation. Legislation that is in the national interest, as this Bill certainly is, is far better for that kind of approach, and that is exactly the approach that the Government have adopted.
Dr Andrew Murrison (South West Wiltshire) (Con)
My right hon. Friend is being ever so slightly modest in relation to new clause 5, which is aimed primarily at protecting personal privacy. Clearly he has been listening, since one of the concerns expressed by industry is that interference and hacking may cause a failure of business confidence in IT. Subsection (2)(b) will go some way to protect the interests of such companies and businesses, since it states explicitly that the public authority must have regard to the public interest in such matters, including the viability of those undertakings.
Mr Hayes
It is true that such concerns have been expressed. Indeed, as we debate the Bill in further detail, particularly with regard to internet communication records, we will see that the capability of organisations to meet the Bill’s requirements must be met in a way that is not excessively expensive or impossible to implement, and that does not have the sort of unintended consequences described by my hon. Friend. It is partly the response to those overtures that has stimulated the changes under discussion. So it was, as he said, partly about what the Opposition said in Committee, partly about what the three reports said in respect of privacy and the consequences he described, and partly about the extensive discussions we have had with the sector on how these things could best be implemented.
Mr Dominic Grieve (Beaconsfield) (Con)
I realise that the Bill is complex, but could I ask my right hon. Friend—not during today’s debate, but before our consideration of the matter is concluded—to write to me setting out each of the penalties for each of the misconducts identified in the Bill? The point that I will make to him in due course is that it remains extremely complex to follow, and, in some cases, the penalties appear to be little more than a rap over the knuckles under the Data Protection Act.
Mr Hayes
My right hon. and learned Friend has made the point about incomprehensibility previously. Indeed, when we debated the draft version of the Bill, one of the telling points he made was that new legislation was needed in part because it should be more comprehensible, easier to navigate and thus more understandable to more people. He is right that the fact that existing provisions are to be found in a number of places makes it hard to determine exactly what powers there are and how the abuse of those powers will be dealt with. I happily concede the point that he has made, because it is important that all Members of this House, particularly he and the Committee that he chairs, are fully aware of the kinds of penalties that might apply. I have described them as “severe”, and I have made the point that wrongdoing cannot be tolerated. Therefore, the least I can do is agree with him that it would be helpful to set out those penalties as he has described. We will do so before the Bill completes its passage through Parliament, because it is only right for us to do so.
The purpose of the amendments and new clauses that we have tabled is to reflect the consideration of the Committee chaired by my right hon. and learned Friend, and to reflect the character and content of the debate that took place when the Bill enjoyed scrutiny in Committee. As we considered privacy to an increasing degree, it became clear that as well as the implicit emphasis on private interest, which runs through the Bill, there was a compelling case for an explicit commitment to privacy in the form of a new clause. To that end, it is right to say that both the minor parties on the Committee—in this case, the Scottish National party—
Mr Hayes
The hon. Member for Perth and North Perthshire (Pete Wishart) shakes his head, but given that the SNP had only two Members on the Committee, I cannot describe it as the major contributor. Before he started shaking his head, I was about to say that the SNP made an incredibly helpful contribution, because it tested the Government, held us to account and made a number of useful and thought-through proposals. The Opposition—by the way, I say to the hon. Gentleman that they are Her Majesty’s Opposition—equally added immense value to our consideration by making the proposal for this new clause, among others. In my judgment, it was absolutely clear that the Opposition were determined to improve the legislation, rather than to weaken or dilute it. In that spirit, I am happy to propose the Government new clauses and amendments in this group.
To allow as many colleagues as possible to contribute to this important debate, I will now finish, except to say this: when Bills come before the House and are considered on Second Reading and debated in Committee and on Report, different circumstances apply and different shadow Ministers and Ministers approach the matter in their own style, but I take the view that although circumstances are beyond human control, our conduct, to quote Benjamin Disraeli, “is in our power”, and our conduct in consideration of this Bill, which is in our power, should continue to be as measured, reasonable and moderate as it can be.
Keir Starmer (Holborn and St Pancras) (Lab)
I thank all Members who have so far been involved in the scrutiny of the Bill, both in its early stages and in the Public Bill Committee. I particularly pay tribute to all members of the Committee from both sides of the House. That of course includes the SNP Members, who worked hard and constructively with us on the Bill. I pay tribute to the hon. and learned Member for Edinburgh South West (Joanna Cherry), who leads for the SNP on this matter.
This group of amendments deals with the general provisions and the overarching privacy clause, so it is important for me to set out Labour’s position before I move on to new clause 5. Safety and security matter. The current threat level for terrorism is severe, which, as we all know, means that an attack is highly likely. We all remember and are deeply conscious of the attacks in Paris and Brussels in the not too distant past, as well as other attacks. However, the Bill deals with not just terrorism, but other serious crimes, such as the threats from people traffickers, including those who traffic children, as well as those who indulge in sexual abuse and those who commit stalking and harassment. The starting position must therefore be that the security and intelligence services, GCHQ, the National Crime Agency and the police should have the powers to deal with these threats.
However, human rights matter, too. That includes the right to privacy, the right to be left alone, the right to have private data protected with security and integrity, and the right to redress when things go wrong, which are important rights. In relation to the issues covered by the Bill, I have seen things from at least two important perspectives. I was a defence human rights advocate for 20 years, taking many cases against some of the law enforcement agencies, and I then had the privilege to be the Director of Public Prosecutions for five years, working with the security and intelligence services and the other law enforcement agencies, so I have seen the threats and how they are dealt with, but also the importance of human rights considerations.
Safety and security and human rights are not mutually exclusive: they are not either/ors and we can have both. That is why Labour has supported the principle of the Bill, but also why we are focused intensely on the necessity of the safeguards for the powers in the Bill. We have supported the principle of the new legislation not only because investigatory powers need updating in a fast-changing world, but, equally importantly, because, after Snowden, it is important that the powers exercised are avowed, that they are placed in statute and that everybody understands the safeguards around them.
In that respect there are two very important reasons why we need new legislation. But some of the proposed powers are very wide—the bulk powers are very wide indeed. That is why Labour’s first and consistent demand of the Government has been for an independent review of the operational case for the bulk powers. The Government published a short operational case alongside the Bill, but we judged that inadequate and have been pressing for a full independent review since.
I am pleased to say that in a letter of 23 May the Home Secretary accepted the case for an independent review of the operational case for the powers. That is a significant and welcome step, and is the right step. I want to strike the right tone here. Labour made very significant demands when the Bill was in Committee. We sought to do so constructively, and there have been significant movement and concessions from the Government; again, that has been constructive. Important moves in the right direction, which will improve the Bill, have been achieved through that dialogue.
Having gone that far it is important now to focus on the task and terms of the review—having the review of bulk powers is one thing, but having the right terms is equally important.
Mr David Winnick (Walsall North) (Lab)
I appreciate all that my Front-Bench team has done and is trying to do to minimise the harm, as I see it, to privacy and civil liberties. But my hon. and learned Friend said that Labour accepts the principle, so may I say that some of us—myself, certainly, as I stated on Second Reading—do not accept the principle of the measures, consider the bulk powers unnecessary and will vote against them at every opportunity?
Keir Starmer
That intervention gives me the chance to say that by and large—there are some exceptions—the bulk powers are available and being exercised at the moment, under the existing arrangements. The Bill puts them on a statutory footing with proper safeguards. Not to do so would leave the situation as it is now; that is unsatisfactory because the powers are not clear and safeguards are not in place. That is an important reason why, in principle, we support the legislation. From my own perspective, having worked with the security and intelligence services on real cases, in real time, I also appreciate why some of the powers are needed and how they are used. We must never forget that important consideration.
We know that David Anderson QC will conduct the review. We have great faith in him, as I think do most Members of this House. It is important that the task he is performing is clear. We have argued that he should look not at the utility of the bulk powers but at their necessity, that he should be able to choose a suitably qualified security cleared panel himself to help him, that he must have access to all the material necessary to carry out the review effectively, including, of course, the material made available to the Intelligence and Security Committee, and that he must have time to carry out his review; we envisage that he will report in time for the consideration in Committee in the House of Lords of parts 6 and 7 of the Bill, which should be in about three months.
I am pleased to say that as those terms of reference are of considerable importance to Labour I have had the opportunity to discuss them with the Minister, and can tell the House that today we exchanged letters setting out that important framework for the review, namely that it should be a review of the necessity of the powers, that there should be properly cleared panel members chosen by David Anderson, that he should have access to all material and that there should be a report within three months. All those are very important for the conduct of the review.
Mr David Davis (Haltemprice and Howden) (Con)
The whole House is glad to hear that there has been constructive engagement on this matter, as it is incredibly important to get it right. Will the hon. and learned Gentleman ensure that those letters are put in the Library today so that the rest of the House is aware of what is going on, as this is fundamental to the Bill?
Keir Starmer
I take that point, although obviously one of the letters is not mine—
Mr John Hayes
I am more than happy to make my letter to the hon. and learned Gentleman available to the House immediately, and I am sure he will do the same. One important point—I want to prevent the hon. and learned Gentleman from having to deal with this himself—is that the review must be conducted during the period in which the Bill is considered, because a review after the legislation has been passed would not be sufficient. I know that the hon. and learned Gentleman has asked for that, and other hon. Members will also take an interest in it, so I happily make that further commitment on the Floor of the House.
Keir Starmer
I was about to say that I will happily publish my letter but that I did not have custody of that of the Minister. I will make my letter available so that all Members can see the exchange and what I asked for in my letter, and the response I received. If we do that straightaway we will have it for the rest of the debate, and certainly tomorrow when we return to bulk powers.
Turning briefly to our other demands, we have consistently asked the Government for an overarching privacy clause, and I will return to that in a moment. As the Minister said, however, new clause 5 is an overarching privacy clause. We have tabled new clause 21, and in a moment I will discuss the differences between the two. We also stated that the Bill must include a provision to make it clear that legitimate trade union activities are not a sufficient reason for powers under the Bill to be exercised—that has been a long-standing concern of the Labour party and the SNP. We have tabled an amendment on that issue and held constructive discussions, and it was the third issue on which we have been constructively engaged. The fourth issue is that there should be a higher threshold for access to an internet connection.
Simon Hoare (North Dorset) (Con)
As someone who served on the Bill Committee with the hon. and learned Gentleman, I welcome the approach taken by the Labour Front Bench. May I remind him that the concern to ensure the legal entity and rights of trade unions and trade unionists was shared across the Committee and not just by Labour and the SNP? It was echoed by the Minister when he responded to the debate, and by many members of the Committee.
Keir Starmer
I actually said that that issue was being pressed for by Labour and the SNP—I think that is accurate—but of course I accept that in Committee, and outside, there has been constructive engagement by the Government. The Minister was quick to indicate a willingness to consider this issue, and discussions have been ongoing. It is important to have clarity so that legitimate trade union activities are protected. Our new clause is now broader than the one we considered in Committee because it goes to national security as well as economic wellbeing. It therefore covers trade union activities in this country, and not just acts outside the British Isles, as would be the case if it was just about economic wellbeing. Such constructive engagement has pushed the Bill forward.
As I said a moment ago, we have made significant demands—I do not hide that—and the Government have moved significantly in response to those demands. This is not a list of victories, scalps, concessions or U-turns; our demands were significant and we stuck by them, and in fairness the Government have responded in the right spirit—that is for those demands that we know about, although we will come to others during the debate.
Mr Kenneth Clarke (Rushcliffe) (Con)
I am listening with interest because the question of an overriding privacy clause has concerned a lot of people. I was not involved in the Committee, and I am not a member of any Select Committees. I am waiting to hear whether the hon. and learned Gentleman is satisfied by new clause 5, which he appears to be. The drafting of legislation is always somewhat obscure nowadays, but does he think that the new clause is satisfactory? It says that the public authority should have regard to
“any other aspects of the public interest in the protection of privacy”.
Would he have preferred some reference to the right of a citizen of the United Kingdom to privacy? Does he think that there is a significant difference, or am I simply making a minor drafting point?
Keir Starmer
If the House is content, I will deal with that in detail later. I have tabled an alternative in new clause 21 precisely to tighten up the reference to human rights and public law. It might be easier if I deal with that point in a few minutes when I get to that provision.
Labour has asked for a revised test for judicial commissioners. Currently in the Bill, the test is reviewed by reference to judicial review principles. The concern is that the judicial review exercise is a flexible test that, at one end, has close scrutiny, when judges look at the substance as well as the process of the decision. At the other end, there is a light-touch review, when the judges look more at process. We have argued that the review should be towards the upper end of strict scrutiny. I am pleased that the Government this morning tabled a manuscript amendment setting out a test for the judicial commissioners that makes it clear that the review will be an upper-end, stricter one—the close scrutiny that we have argued for. That refers back to the privacy clause, and I will try to make good that link when I get to it.
The manuscript amendment is a constructive move by the Government to meet my concern that review must be real and meaningful, not a long-arm, Wednesbury-unreasonableness review. The manuscript amendment is a significant change.
Mr Hayes
The hon. and learned Gentleman draws attention to the manuscript amendment the Government tabled this morning. We did so, as he describes, precisely to deal with the point raised in Committee and by others that the judicial review process might be interpreted in different ways by different commissioners. The amendment is a tighter definition of their role, strengthens the double lock and is very much in response to the Opposition critique and that of Government Members that the new process needs to be as well defined as possible.
Keir Starmer
I am grateful to the Minister—that was what the Opposition pressed for.
There have been differences of approach to the test for judicial commissioners. On the one hand, colleagues on both sides of the House have made a powerful argument that the judicial commissioners should retake the decision. On the other hand, others have argued that the decision should be reviewed. The amendment strikes a third route, which is to apply a review test but to confine it to the stricter end of the judicial review principles.
As hon. Members know, I have been a lawyer for many years and have dealt with many public law cases, as other hon. Members have. The difference between strict scrutiny and long-arm judicial review is very real —it is a material difference. That is why the manuscript amendment is highly significant.
Joanna Cherry (Edinburgh South West) (SNP)
It has been a pleasure to work with the hon. and learned Gentleman on the Bill. Like me, as a lawyer, he will have advised clients frequently on judicial review. He will no doubt agree that judicial review looks to the reasons given for a decision. There is no duty on the Secretary of State to give reasons for her decision on whether or not to grant a warrant. How can there be judicial review when no reasons are given?
Keir Starmer
The hon. and learned Lady made that very important point in the Bill Committee. Normally when decisions are subject to judicial review, there are reasons for the decision. What is envisaged is that the decision itself, plus such material as has been looked at by the Secretary of State, will be put before the judicial commissioner. There will not be reasons, which makes the task more difficult, but what is important about the test set out in the manuscript amendment is that the judicial commissioner must ensure that the duties under the privacy clause are complied with, which means that he or she will have to look at that underlying material. It might well be a good point to say, “If there are reasons, it would be an easier task,” but I do not believe the task cannot be performed without reasons. In due course, the judicial commissioners may say, “We need further help on particular issues.”
Mr Hayes
The hon. and learned Gentleman made the point in passing, but it is salient: in reviewing what has happened, the commissioner will receive the same information as the Secretary of State. The review will not, as was feared at one point, merely be a review of process, in which the reviewer would say, “Yes, the Secretary of State has taken the right steps,” rather than looking at the arguments that the Secretary of State had considered. Those are the two points I make on what he and the hon. and learned Member for Edinburgh South West (Joanna Cherry) said.
Mr Davis
There were two reasons for concern. First, the House should seek certainty in the law, rather than any notion that the law would alter depending on the judge. The Minister is one of those who wants certainty in the law and less law-making by judges, so he should accept that point. Secondly, the Home Secretary reviews approximately 2,500 warrants a year—10 a day. The ability to do so is dependent to a very large extent on the data presented and the time available. The reason we wanted a reasons-based judgment was the feeling that an hour on any given warrant was simply not enough time. At this point, I do not know whether this provision will meet that requirement, but that is the test in my mind.
Keir Starmer
I am grateful for that intervention. The certainty point is really important. It is a point that Lord Judge made when he gave evidence to the Public Bill Committee. When I asked him about the reference to judicial review principles, he was concerned that that was not clear enough for the judges to know which particular test they were to apply. Now, with the new text in the manuscript amendment, it is crystal clear to the judges that they review the decision according to judicial review principles, but they must
“consider the matters referred in subsection (1)”—
necessity and proportionality—
“with a sufficient degree of care as to ensure that the Judicial Commissioner complies with the duties imposed by the section”.
That is the privacy clause. The test for the judges is now crystal clear: look at necessity and proportionality, and review the Home Secretary’s decision with a sufficient degree of care to make sure that the judicial commissioner complies with the duties imposed by the general provision in relation to privacy. That deals with the certainty point.
As far as the reasons are concerned, I cannot improve much on my previous answer. What I think is envisaged is that there will be a number of judicial commissioners whose task will be to undertake this review, and to take such time as they need to look at the material and apply this test. They will not necessarily have the constraints that the Home Secretary and the Foreign Secretary have, but obviously a lot of this will happen in real time, so there will be the constraint of time in that sense. As I said, they will not be doing that alongside the other sorts of duties that a Secretary of State has to carry out during the course of a day.
I share the concerns that have been expressed on this matter, but I am clear in my mind that close scrutiny on judicial review principles is markedly different from Wednesbury unreasonableness and makes a real difference in real cases, so long as there is access to all the material, and clarity that the privacy provisions must be complied with. That effectively means that there are factors that it is mandatory for the judicial commissioner to take into account. That makes a material difference. That is why we will support the amendment.
The Solicitor General (Robert Buckland)
The hon. and learned Gentleman and I debated this point closely in Committee, and I thank him for the way in which he has approached the matter. With regard to clarity, it is not now beyond any doubt that the test will depend not on the personality of commissioners, but the facts before them? They have a very clear basis on which to make their judgment, looking at the particular degree and seriousness of the case, and balancing the right to privacy with all the qualifications that he, I and others know exist in article 8.
Keir Starmer
I am grateful for that intervention. To illustrate why we are satisfied, under the general privacy clause—I have a tighter version of new clause 21, but for this purpose that does not matter—one of the general duties is to have regard to
“whether what is sought to be achieved by the warrant, authorisation or notice could reasonably be achieved by other less intrusive means”.
Under this test, a judicial commissioner will have access to the material, will obviously know the Secretary of State’s decision, and will have to ask himself or herself that question. That is a long way from simply asking whether a decision was so unreasonable that no reasonable Secretary of State could have taken it, and that is why the new clause makes it clear that it is close-scrutiny review, rather than long-arm review, that is being dealt with.
Mr John Hayes
I note the hon. and learned Gentleman’s comments about the difference between the two new clauses, and the Government are not blind to his argument about ensuring that the connection to human rights is secure. The Bill will clearly continue to enjoy scrutiny over the coming weeks and months, and he needs to know that, as he described earlier, we are always happy to listen and learn. I hope that tonight we can establish that an overarching privacy clause is essential, and can continue to have a discussion about the fine details.
Victoria Atkins (Louth and Horncastle) (Con)
Section 6 of the Human Rights Act requires public authorities to have regard to the Act in any event, so I wonder what advantage the hon. and learned Gentleman thinks referring to the Act in the Bill will have.
Keir Starmer
I am grateful for that intervention, because it drives us back to the point of the privacy clause, which we debated in Committee and which has been debated elsewhere. It is important for three reasons. First, this is a statement of principle about the important interests and duties running through the Act, and it is important to have that statement in the Act. It avoids inconsistency and reminds decision makers of the importance of taking into account privacy, the integrity of data, human rights and so on in all cases, so this is a matter of principle.
The second reason why our new clause is important is that of practical considerations. I worked with the Police Service of Northern Ireland for five years in relation to its compliance with the Human Rights Act. Having structures and decision making written into everything it did helped it to reach better decisions, and I am sure it is the same for other police forces and for public authorities. Never underestimate the practical application that such a clause has in real time for people in public authorities trying to do their job. The third reason—I will come back to this in a minute—is that our new clause gives real teeth to the test that the judicial commissioners apply, because there would be a link between the privacy clause and the test.
Mr David Davis
I thank the hon. and learned Gentleman for his patience in giving way so many times. Frankly, I favour his version and the reason is this. It rather bounces off something he said earlier, when he was talking about the protection of trade unionists. Of course, he is right: historically, there have been cases, 20 years ago or so, of what one might call foolish interference in trade union actions by the agencies. Today, one of the problems is interference in what might be thought of as legitimate demonstrations, by environmental groups and so on, that have become public scandals. When he was talking about trade unionists, I was trying to think how we generalise that. It seems to me that his new clause is the right way to protect those engaged in legitimate democratic activity from improper intervention.
Keir Starmer
I am grateful for that intervention. It is the historic trade union cases that have caused so much concern, but our new clause is intended also as a future-proofing exercise to ensure that, whatever human right is at issue and whichever individual or organisation is involved, there is a provision that requires decision makers to take into account the convention rights involved.
Mr Grieve
The hon. and learned Gentleman will have seen that the Intelligence and Security Committee has tabled a short amendment that says:
“This Act sets out the extent to which certain investigatory powers may be used to interfere with an individual’s privacy.”
We felt that that, linked to either his or the Government’s amendment, would send out a clear general statement about the state’s requirement to protect privacy. I wonder whether he has a view on that, because it seems to me that our amendment would add something without in any way undermining the ability thereafter in the Bill to undertake those necessary interferences that might be required.
Keir Starmer
I am grateful for that intervention, because what amendment 14 makes clear—the point is sometimes missed—is that these, or indeed any, investigatory powers affect an individual’s privacy. We have to be absolutely clear: the right to privacy is fundamental, but it is not absolute. The Bill gives the state a power to interfere with privacy—that is what it is about. The question then becomes: is there a case for the interference in the first place, and if there is, is that interference necessary and proportionate? Obviously it is for the Minister to respond to our amendment, but in a sense it is all of our duties to remind ourselves that this is all about an interference with privacy, and that is why the safeguards are so important.
The third reason the overarching privacy clause is important is that it is now linked to the test for judicial review of the Home Secretary and Foreign Secretary’s decision, so it has real application every day when one of the warrants is applied for.
Finally, let me say a few words about the appointment of judicial commissioners, an issue that has cropped up a number of times. Under clause 194, it is for the Prime Minister to appoint the Investigatory Powers Commissioner and
“such number of other Judicial Commissioners as the Prime Minister considers necessary for the carrying out of the functions of the Judicial Commissioners.”
Before doing that, he must consult the Lord Chief Justice of England and Wales, the Lord President of the Court of Session, the Lord Chief Justice of Northern Ireland, the Scottish Ministers and the First Minister and Deputy First Minister in Northern Ireland. Our amendment 298 would ensure that the Prime Minister acted on the recommendation of
“the Lord Chief Justice of England and Wales, in relation to Judicial Commissioners appointed from England and Wales,”
and likewise the recommendation of the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland in relation to Scotland and Northern Ireland.
The reason is that it is envisaged that judicial commissioners will be appointed from among those who are already very experienced judges—High Court and above—either serving or retired. They will obviously have gained the qualifications to be judges and will be appropriately skilled and qualified to take these decisions, so in truth the exercise of appointing a judicial commissioner will be an exercise in deploying, from the pool of available judges, those who will sit as judicial commissioners.
That is an important consideration. Our amendment is tabled on the basis that it is not appropriate for the Prime Minister to decide that sort of deployment—he does not have the skills and experience to do it—nor, in a sense, should it be a political deployment. This is something routinely done by the Lord Chief Justice of England and Wales. Our amendment would ensure that the Lord Chief Justice of England and Wales, the Lord President in Scotland and the Lord Chief Justice of Northern Ireland make a recommendation that binds the Prime Minister. The appointment is, of course, the Prime Minister’s, but that is the right way to carry out the appointment to this important judicial role, rather than the version in the Bill.
Mr George Howarth (Knowsley) (Lab)
I am grateful to my hon. and learned Friend for giving way again. If the recommendation should be a judicial one and if, as I think I understood him to say, the Prime Minister would not have the ability to overturn it, I fail to understand what the point would be of involving the Prime Minister at all.
Keir Starmer
The answer to that is twofold, although I should say that if the decision was on the recommendation of the Lord Chief Justice and so on, it would not be open to the Prime Minister not to follow that recommendation. We need a slight reality check. At the moment under clause 194, if the Lord Chief Justice of England and Wales—or, I am sure, the equivalent in Scotland—was consulted and made his or her views clear, it would be highly unlikely that any Prime Minister would act in a way that was contrary to the advice they were receiving from the senior judge in those jurisdictions, but our amendment would bind the Prime Minister. The question is: what is the point of involving the Prime Minister? The answer to that—to some extent this is to the Minister—is that there is the question of accountability for making the appointment.
There is also the point, as the Lord Chief Justice has pointed out, that he—or she, as the case may be—is not in the business of making judicial appointments as such, and will therefore be reluctant to have that power. The Minister might want to confirm that, because he has been having those discussions, not me. I think the Lord Chief Justice and others are reasonably happy to help with the deployment exercise, but not with the business of appointing judges.
Mr John Hayes
I have no doubt that the Solicitor General will deal with this later, but the point is that the Prime Minister is ultimately responsible for the protection of national security. As the hon. and learned Member for Holborn and St Pancras (Keir Starmer) said, when Lord Judge gave evidence to the Joint Committee, he made exactly the point that the hon. and learned Gentleman has made. Just to affirm the other argument that he advanced, the Prime Minister will of course seek advice on these matters in the way that the hon. and learned Gentleman has described, and I share his view that it is highly unlikely that the Prime Minister would then take a perverse decision.
Keir Starmer
I am grateful for that indication.
I have taken longer than I had anticipated. I think I have taken every intervention, because important points were being made—that is in mitigation rather than an excuse, I suppose—but the House will be pleased to know that I have finished, at least on these amendments.
Mr Grieve
It is a pleasure to take part in this debate. As will be noted, the Intelligence and Security Committee has tabled a number of amendments to this part of the Bill for the House’s consideration. I want briefly to run through them and explain the Committee’s collective position.
I want to start, however, by commenting on the debate we have just been having about privacy. It seems to me that it is absolutely central to the duty on this House that we should ensure that the principle of the right to privacy against the state is maintained except if there is a good and sufficient reason why that should not happen. In that context, it is extremely important that the Bill should be clear about the right to privacy. I very much welcome new clause 5; indeed, the difference between that and the new clause tabled by the hon. and learned Member for Holborn and St Pancras (Keir Starmer) is, in reality, very slender indeed, as I see he acknowledges.
Mr John Hayes
My right hon. and learned Friend makes a good additional point. He first, perfectly properly and sensibly, asked for clarity about the character of the penalties, and now makes a telling second point about how this Bill relates to other existing legislation that deals with these or related matters. A further note to the House, during the passage of this legislation, dealing with that second point is necessary, and I commit to providing it. Let me draw Members’ attention, as my right hon. and learned Friend will do, to the first part of the Bill, which deals with offences. I accept that that does not wholly answer the question—
Mr Deputy Speaker (Mr Lindsay Hoyle)
Order. Let me help the Minister a little. He has asked for more time at the end in which to deal with various points, but what we are bothered about is eating into that time when so many Members wish to speak. Being quicker in responses would help.
Mr Grieve
Thank you, Mr Deputy Speaker. I am grateful to the Minister for his response, and I look forward to such a review happening. It would be good if it could take place in plenty of time before the Bill is passed, because we must have this issue in mind if we want to take different steps in respect of this matter.
Let me move on to new clause 2 and the associated amendment 18, which reflect some of the important concerns of the Intelligence and Security Committee. The Bill contains some welcome reforms to the commissioners who are currently responsible for the audit of authorisations and warrants that govern the use of intrusive powers. I am sure that all Members will agree that the new judicial commissioners will be critical in providing the assurance we need that the intrusive powers are being used appropriately.
What is currently missing, however, is a power to refer cases to the commissioners by the Intelligence and Security Committee. The ISC considers strategic issues and overall policies, including operations of significant national interest, but that is quite a different role from the commissioners who audit specific authorisations and warrants. The Committee sees our roles as complementary and, at times, our own work will throw up concerns about issues that we ourselves are not in a position to investigate. It is entirely appropriate that matters arising from a strategic or high-level inquiry conducted on behalf of Parliament by the ISC be capable of being referred to the commissioners for more detailed audit.
To date, however, I have to say that the informal process has not been working well. I mentioned previously that the ISC discovered that the Interception of Communications Commissioner did not know how many selection rules GCHQ applied to its bulk intercept materials. In such circumstances, the ISC should be able to refer that matter to the commissioner to ensure that he investigates the selection rules and provides thorough oversight.
To provide a further example, in its report on the killing of Fusilier Lee Rigby, the ISC identified a number of concerns about the involvement of the intelligence services prior to events and particularly in respect of one of the killers. Despite numerous invitations to discuss the matter, the Prime Minister referred it to the commissioner, yet despite numerous representations to the commissioner for an opportunity for the ISC to raise its concerns directly with him, that opportunity has never been taken up. Neither has there been any response of any kind to the ISC’s representations.
I want to emphasise that the commissioner is independent. There is no suggestion on the part of the Committee that we should be telling the commissioner what to do, but if informal channels of communication do not seem to be working very well, it seems to us that greater co-operation is required to make this and every other aspect of our scrutiny and the commissioner’s scrutiny work better. It would therefore be helpful if there were a clear mechanism by which the commissioner could receive a reference and be required to acknowledge it. That is why we tabled new clause 2. It has been suggested that this might be in some way improper because the commissioner has a judicial function. I have to say that although the commissioner is a person who must have held judicial office, being a commissioner is not a judicial function, so I cannot see for the life of me why this requirement cannot be placed on him.
The Solicitor General
I have listened very carefully to what my right hon. and learned Friend has said about amendment 18, which the Government are prepared to accept. On the first part of new clause 2, the Government are prepared to accept referral in principle, but I would like to address in greater detail in my closing remarks, my concerns about reporting. I am sure my right hon. and learned Friend will listen carefully to what I have to say in due course.
Mr Grieve
I will certainly listen very carefully to what my hon. and learned Friend has to say. It was on that basis, I should make it clear, that I tabled new clause 2 as a probing amendment. If he can provide me with some reassurance, we will leave it there. This is an important issue, and the wording is crucial. We did not intend to put any constraint whatever on the commissioner in respect of the conclusions he reached, and I could even envisage the commissioner writing back and saying, “I have taken a preliminary look, but I’m afraid I disagree with you, and I do not think this is worthy of my investigation.” That is the lowest level of response that the Committee would hope to get from the commissioner. On that basis, I find it difficult to see that that would be putting improper pressure on the commissioner to provide a response.
I gratefully accept what my right hon. Friend the Minister for Security, has said about amendment 18. This means that we shall be able to go to the Prime Minister and ask him to give a direction in certain circumstances. Indeed, if the leading member of the Executive will be able to give a direction to the commissioner to carry out an investigation, it could hardly be improper for us merely to ask the commissioner to consider and acknowledge a request to investigate something.
I shall turn briefly to amendment 8, which deals with the oversight of safeguards relating to bulk powers. When we reported on the draft Bill, we recommended that bulk equipment interference warrants be removed from the Bill entirely. We said that we had
“not been provided with sufficiently compelling evidence as to why the Agencies require Bulk Equipment Interference warrants, given how broadly Targeted Equipment Interference warrants can be drawn”.
In response to that recommendation, the Government helpfully provided the Committee with further extensive classified evidence, which we scrutinised in great detail. After carefully considering it, we concluded that there were circumstances—target discovery was an example—that would require a bulk equipment interference warrant and could not simply be covered by a thematic warrant. However, central to our willingness to accept that change is the need for underlying safeguards, policies, procedures and access controls to be in place.
In the last Parliament, the Committee’s inquiry on privacy and security examined at great length the underlying safeguards for bulk interception, and it was those that convinced the Committee that bulk interception was properly controlled. We are told that the same principle is going to apply to bulk equipment interference. We have sought assurances from the Government that the same safeguards, policies, procedures and access controls that apply to bulk interception will also be applied to interference, and we have received those assurances.
Nevertheless, given how critical those underlying safeguards are, we regard it as essential that the Bill place an obligation on the commissioner to have particular regard to the privacy safeguards when reviewing all matters under the Bill. The reason that this must be clearly stated on the face of the Bill is that the Committee discovered in its previous inquiry that the current Interception of Communications Commissioner did not know the detail of the underlying safeguards for bulk interception. This cannot therefore be taken for granted; there must be a specific obligation in statute.
Lucy Frazer (South East Cambridgeshire) (Con)
New clause 5 relates to privacy and states that the public authority must have regard to
“whether what is sought to be achieved by the warrant, authorisation or notice could reasonably be achieved by other less intrusive means”.
If the new clause is accepted, could that affect the point that my right hon. and learned Friend is making? Would not the least intrusive method possible have to be used?
Mr Grieve
I think my hon. Friend makes a good point. I have an underlying confidence that the amendment we are discussing might commend itself to those on the Government Front Bench. On that basis, I do not intend to labour this point any further. I felt it was important to set it out, however, because it marked a significant shift in the Committee’s approach to this legislation. I wanted the House to understand why that change had come about after we had been given the extra classified briefing and why we came to the conclusion that we should accept this principle, alongside essential safeguards.
Mr David Davis
I have not read the individual amendments, so I am flying blind here. However, there is no doubt that this power is the most intrusive power in the Government’s armoury. One of the problems historically has been that the sheer volume of work being conducted means that scrutiny and oversight can sometimes slip. Would my right hon. and learned Friend’s amendment actually require the investigation of every single bulk intervention?
Mr Grieve
The amendment would require that
“the Investigatory Powers Commissioner must, in particular, keep under review the operation of safeguards to protect privacy.”
In our view, it is crystal clear that such a provision would meet the needs that we have expressed. As I have said, the Committee has been satisfied that the rules relating to bulk interception are adequate to provide the necessary safeguards. So, as long as we apply identical standards to equipment interference, the Intelligence and Security Committee believes that this process could be made to operate properly.
Mr John Hayes
I hear what my right hon. and learned Friend has said. He will be aware that, because of the arguments put forward by him and others—including Opposition Members—on bulk powers, we have agreed to a further independent review. The point of clarity here is that the review will look at the range of bulk powers and apply its assessment of necessity across that range. I just wanted to give him that additional assurance.
Mr Grieve
I am grateful to the Minister. Clearly, the more targeted a power can be, the better. Indeed, that was one of the reasons that the Committee expressed concern about whether the bulk power was required in the case of equipment interference. However, in classified evidence to us, the Government made the compelling case that simply relying on thematic powers or targeted powers would be likely to be insufficient and unsatisfactory. In changing our position, we have acknowledged that. However, that makes it all the more important that the safeguards should be properly in place. Those are the key amendments in this group that I wanted to bring before the House. I simply reiterate my earlier comment that the Government have really co-operated and moved a great deal in relation to this legislation. They have responded positively, as I shall be able to illustrate as we come to the further amendments.
Joanna Cherry
I have unashamedly tabled a lot of amendments to the Bill, including to part 8, and the Scottish National party will also support amendments tabled by others.
I pay tribute to the hon. and learned Member for Holborn and St Pancras (Keir Starmer), with whom I worked closely in Committee. There are areas of divergence between the SNP and Labour on the Bill, but it was a pleasure to work with him and I hope that there will be other occasions on which Labour and the SNP can work together harmoniously.
I recognise that the Government have made significant concessions on part 1 of the Bill. I welcome their attempt in new clause 5 to introduce an overarching privacy requirement. Their belated conversion to the central recommendation of the Intelligence and Security Committee is a tribute to the arguments advanced by Opposition Members in Committee. I have to say, however, that I prefer new clause 21, tabled by the Labour party, which trenchantly states that regard must be given to the Human Rights Act 1998. For reasons that other hon. Members have already given, that is important. It is encouraging to see the Government making reference in their own amendments to the Human Rights Act. That gives me hope that they might have retreated from their plan to repeal the Act even further than we had hoped. That could be one of the little bits of good news to come out of this exercise.
I am also happy to welcome Government new clause 6, and I thank the Minister for Security for acknowledging that it reflects an amendment that was tabled by my hon. Friend the Member for Paisley and Renfrewshire North (Gavin Newlands) and me. It is quite an historic occasion when the Government accept an amendment tabled by the SNP, and I should like to mark it. I just wish that they would look at more of my amendments, but I fear that they will not do so. We are, however, pleased that the Government have seen fit to respond to a number of the concerns raised in Committee. That said, I want to be clear that they will have to go an awful lot further before the Scottish National Party can contemplate giving the Bill our support.
As I said on Second Reading, we would like to be able to support some aspects of the Bill, because they are necessary for law enforcement across these islands and reflect some powers that are already in force in Scotland. It is also a good idea to consolidate the powers and to have a modern, comprehensive law. However, we remain concerned about the legality of some of the powers that are still on the face of the Bill and the fact that they significantly exceed, such as with the retention of internet connection records, what is authorised in other western democracies. We continue to have severe concerns about the bulk powers enabled by parts 6 and 7 of the Bill. We are pleased that the Government have conceded that there should be a properly independent review of the bulk powers, which was argued for by both Labour and SNP Members in Committee, but we are yet to see confirmation of the review’s remit. I want to associate myself with what the hon. and learned Member for Holborn and St Pancras said about the review needing to look not at whether the bulk powers are useful, but at whether they are necessary. We look forward to the publication of the correspondence between the Government and the Labour party, so that we can see what is being proposed. My hon. Friends the Members for Paisley and Renfrewshire North and for Glasgow North East (Anne McLaughlin) will address bulk powers and internet connection records in more detail tomorrow.
I led for the SNP in Committee, where we tabled numerous amendments to try to get the principle of suspicion-based surveillance to run throughout the Bill. We support the idea that warrants should be focused and specific and that oversight should be robust and meaningful. Nearly all our amendments were opposed or ignored by the Government, which is why we cannot give the Bill our support at this stage.
On Second Reading, the right hon. and learned Member for Rushcliffe (Mr Clarke) sought to mock me for making what he described as
“combative and partisan speeches in support of an abstention”.—[Official Report, 15 March 2016; Vol. 607, c. 847.]
He expressed a degree of confidence in a shared consensus across this House about the principles that we should be adopting. I am afraid that my experience in Committee has shown his confidence to be misplaced. The amendments tabled by the Government for debate today are only a partial response to our legitimate concerns. The Government need to pay more than lip service to the importance of privacy and to the principles of necessity and proportionality.
Mr Alistair Carmichael (Orkney and Shetland) (LD)
I am grateful to the hon. and learned Lady for giving way, because I agree with what she is saying. May I suggest that there is one means by which the Government could demonstrate good faith? In order to get to a vote on new clause 21, we will first have to vote down new clause 5. If the Government are serious about listening to the House, could they not withdraw new clause 5 to allow us to have a vote on new clause 21?
Joanna Cherry
That is an excellent suggestion that the Government should consider carefully.
I also mentioned on Second Reading that the United Nations special rapporteur had expressed concern about the Bill’s provisions, especially the bulk powers. That is why it remains the SNP’s position that until such time as a case has been made for the necessity of bulk powers, they should be removed from the Bill.
I make no apology for tabling numerous amendments, because this is a constitutionally important Bill. Their purpose is to try to bring the Bill into line with international human rights norms and to make it properly lawful. If the Bill is passed in its current form, there is a real risk that it will be the subject of challenge. Many of the threads running through it, such as the retention of data and bulk powers, have already been the subject of successful challenges or are awaiting the outcome of decisions. We need to be careful about passing powers into law when their legality has already been questioned by the European Court of Human Rights in Strasbourg, the European Court of Justice in Luxembourg, and a court in England.
In reality, I know that our amendments will not be accepted because we are already running out of time. We simply have not had enough time to consider the Bill. We have two days for Report, which I know is unusual, but we have short periods of time to speak about important parts of the Bill. I am only at the stage of making some introductory remarks and will have to curtail what I say about part 8 in the interest of other Members getting the right to speak. That will happen as we go through each part of programme motion.
Mr George Howarth
I share the hon. and learned Lady’s concern that maybe there is not enough time to consider the Bill as fully as she or I would like, but I am a bit confused. If that is the case, why did she not oppose the programme motion?
Joanna Cherry
I knew that that was a pointless exercise that would have eaten into the time that we have, so not opposing it was a practical decision.
Mr John Hayes
More pointedly, the Committee stage finished a day early, so why did she not debate the Bill for another day in Committee?
Joanna Cherry
If anyone reads the records of that Committee, they will see that I made more than my fair share of contributions. I do not have any problem with that. My issue is that other Members—the people sitting behind me, the Labour Members and Government Members—will not get a chance to speak and that we will not get a chance to vote on more than a handful of amendments. Given the degree of concern expressed about the Bill, it is frankly ridiculous that we will get to vote only on maybe eight or nine amendments over the next couple of days out of the hundreds of amendments that have been tabled. I am not ashamed to say that that is no way to legislate. We need to look at the way we go about things.
I am going to have to cut my cloth according to how much time is left, and I want to try to address some of the key SNP amendments to part 8 of the Bill, dealing first with amendment 465 and 466 to clause 194. Part 8 deals with oversight. At an earlier stage in the process, the Government said that they wanted to create a world-leading oversight body, but they have failed to do that. Our amendments seek to say that in addition to the investigatory powers and judicial commissioners there should be a separate body, known as the investigatory powers commission. It is not just some little notion of mine or of the SNP; it is what was recommended by the Royal United Services Institute’s independent surveillance review, the Joint Committee on the Draft investigatory powers bill, and by David Anderson QC’s investigatory powers review. David Anderson said that there should be a new independent surveillance and intelligence commission. It is a matter not only of what it is called; it is matter of what it actually does. Other hon. Members have tabled amendments relating to separating out the judicial and audit functions, and in the unlikely event that we get a chance to vote on them, the SNP will support them.
In written and oral evidence to the Bill Committee, we heard from Joanna Cavan, the head of the Interception of Communications Commissioner’s office. She reminded us that the judicial commissioners will deal only with some 2% of the applications falling within the remit of the oversight body. The remaining 98% will be subject to post-facto oversight only, so it is vital that that oversight is independent and robust. Creating a separate commission, as recommended by the three bodies I mentioned, would help to form a distinction between the approval and post-facto audit elements of the oversight body and would avoid the idea that judicial commissioners might be marking their own homework. That is what Labour’s amendment 146 seeks to address and the SNP will support it if we get a chance to do so. Joanna Cavan also told us that she had spoken to a number of the UK’s international oversight counterparts and that some had expressed surprised that the UK was going down the route of putting both the approval and the post-facto audit elements into the same body. Those amendments are crucial and I will be pressing them to a vote if I possibly can.
I turn now to the SNP’s amendments 467 and 469 and the question of the appointment of the judicial commissioners. I listened to what the hon. and learned Member for Holborn and St Pancras said in his speech, but the SNP does not think that Labour’s amendment goes far enough. The Government have made much of the main safeguard in the Bill being the role of judicial commissioners and the double lock, so it is vital that we get the judicial commissioner appointment process right. I suggest that, like the Justices of the United Kingdom Supreme Court, the commissioners should come from the jurisdictions and the judicial pool across the United Kingdom, not just the English Bench, and that the public must be confident that they are selected on merit, rather than because they can be trusted by government to be conservative or pro the state in their decision making. The SNP amendments therefore propose that, as well as having consultation with the Lord Chief Justice of England and Wales, the Lord Chief Justice of Northern Ireland and the Lord President in Scotland, these appointments should be subject to recommendations made by the independent Judicial Appointments Board of Scotland, the independent Judicial Appointments Commission in England and Wales, or the Northern Ireland Judicial Appointments Commission.
Pete Wishart
As usual, my hon. and learned Friend is making a powerful case. Does she agree that the judicial commissioners are the big flaw in the Government’s proposals today? This idea that somehow the Prime Minister could simply just agree with what has been suggested by judicial commissioners is concerning, because he could also disagree with what has been proposed and suggested. Does she have any concerns about that?
Joanna Cherry
I do, but let us suppose the judicial commissioners have been selected by an independent board. The Judicial Appointments Board of Scotland, the Judicial Appointments Commission—in England and Wales—and the Northern Ireland Judicial Appointments Commission are not made up just of lawyers; there are lay people and people from other walks of life on these bodies. That is to give the public confidence in the independent appointment process of the judiciary, and it is very important that the public—our constituents, who have concerns about how far the powers in this Bill are going—have confidence that the judicial commissioners who will be performing the oversight functions and enforcing the safeguards on this Bill are appointed independently, rather than being the right chap for the job being chosen. I choose my words advisedly there.
I am very conscious of not eating up too much time, Mr Deputy Speaker. I have discussed two crucial amendments that I would like to put to a vote on part 8. I have tabled other amendments that others will perhaps be able to speak about, such as the measures on post-notification following surveillance and the notification of errors. I briefly wish to turn to amendment 482, which is designed to put it beyond doubt that voluntary, unsolicited disclosures are protected and that a whistleblower is protected from criminal prosecution. The amendment reflects our concern that provisions in the Bill may inadvertently risk discouraging or preventing individuals within public authorities or agencies, or in communication services providers, from approaching the Investigatory Powers Commissioner with concerns or communicating with the commission frankly. Throughout the Committee process, we attempted to amend the Bill by inserting a public interest defence for whistleblowers. Regrettably, the Government were not prepared to accept it, but I was happy that when I proposed an amendment similar to this one to part 8, the Solicitor General said in Committee that he recognised the sentiment behind the amendment and was of a mind to give it further consideration. I urge the Government now to make a gesture by supporting this amendment, which I may push to a vote if I get the chance to do so.
The Solicitor General
The hon. and learned Lady is absolutely right in her recollection, and I am giving this matter anxious consideration. I would, however, point out that clause 203, dealing with the information gateway, underpins the important principles that she outlines about the rights of whistleblowers. I hope that is of some assistance.
Joanna Cherry
I hear what the Solicitor General says, but we took clause 203 into account when framing this amendment, and we remain of the view that it needs to be put beyond doubt in the Bill that whistleblowers will be protected from criminal prosecution and that there will be a public interest defence. I will mention that again when discussing other parts of the Bill.
Time prevents me from talking about the fact that the right of appeal in respect of the Investigatory Powers Tribunal is, regrettably, curtailed, but I do not think we are going to get to deal with that today. What I really want to say in conclusion is that this Bill seeks to put on a statutory footing very extensive powers, and it is vital that there is proper oversight of the way in which they are exercised. Part 8, as it stands, is pretty mealy-mouthed. It does not even implement the central recommendation of RUSI, the Joint Committee and David Anderson that there should be a separate investigatory powers commission. Without these amendments proposed by the SNP on key recommendations about oversight, we cannot support the Bill in its current form.
Sir Simon Burns (Chelmsford) (Con)
I am pleased to take part in this debate, although I shall only speak briefly because I know that many of my right hon. and hon. Friends, and Opposition Members, wish to participate. What we are debating in this group of amendments is crucial, because we are dealing with investigatory powers and, specifically, the role of technology in policing the modern age. Although I represent a constituency in Essex, which sometimes seems a world away from Westminster, I can tell hon. Members that my constituents and I worry about the same things: how we protect our country’s visible and invisible borders; how we keep our local community safe; and how we spot young people at risk of abuse or of going off the rails, so that we can do something about it before it is too late.
I certainly want to ensure that our liberties are fully understood and protected. That is why I welcomed the fact that during the Committee stage, which I took part in towards the end, the Government, my right hon. Friend the Home Secretary, the Solicitor General and the Minister for Security were prepared to listen to arguments—particularly those made by the hon. and learned Member for Holborn and St Pancras (Keir Starmer)—that sought to strengthen the protections without compromising the aims of the legislation. It was refreshing, in many ways, not to have the normal Punch and Judy politics, whereby everything the Opposition proposed must be wrong because the Government had not thought of it first. That give and take, which is shown in Government new clauses 5 and 6, and in some of the amendments, particularly amendments 33 to 38 and 45 to 48, is important in meeting concerns about protecting civil liberties without compromising the main aims of the Bill. Those amendments have been tabled to make it clear that warrants or other authorisations should not be granted where information could be reasonably obtained by less intrusive means.
More than anything, however, we have to ensure the liberty of my constituents to live quietly and peacefully, free from attack—that is, of course, the most fundamental liberty of all—and it must be protected from those who wish them harm. Today such people live everywhere, and they have the powers, through the internet and modern communication techniques, to be everywhere, plotting, planning and executing their evil deeds. That is why I was pleased to see the supporting provisions that this group of amendments address in ensuring that we have not only those protections for my constituents and others, but a sympathetic and reasonable approach to protecting people’s civil liberties.
This Bill goes further than ever before in terms of transparency, making clear the most sensitive powers available to the security and intelligence agencies and the strict safeguards that apply to them. The controls on bulk powers and the double lock protection, which requires a sign-off for action by not just the Home Secretary but independent commissioners, are extremely important in winning public confidence in the measures being proposed. That will be discussed in greater detail when those Committee provisions come before us later in our proceedings on this Report stage.
I ask those who worry about interception powers to remember the following simple facts relating to technical capability. Since 2010, the majority of MI5’s top priority British counter-terrorism investigations have used intercepted material in some form to identify, understand or disrupt plots to harm Britain and its citizens. In 2013, this material was estimated to form between 15% and 20% of the total intelligence picture in counter-terrorism investigations. Data obtained by the National Crime Agency suggested that in 2013-14, interception played a critical role in investigations that resulted in more than 2,200 arrests and the seizure of more than 750 kg of heroin and 2,000 kg of cocaine, more than 140 firearms, and more than £20 million.
I believe that the power to intercept communications from potentially very dangerous people has helped to keep my constituents and those of other right hon. and hon. Members much safer and much more secure in their homes, in their jobs and on the streets they walk every day; but I also recognise the calls from some that we must be careful not to risk the fundamental liberties of our democracy as we do battle with potential terrorists. The Government have clearly been mindful of the Wilson doctrine and have tabled amendments, which I welcome, to require that the Prime Minister approve, rather than just be consulted on, all equipment interference warrants relating to parliamentarians.
We must ensure that the powers that we give to our police and security agencies, while they are sufficiently transparent, are also fit for purpose. Terrorists and other threats to my constituents’ safety are constantly evolving and adapting their techniques to trump the safety system. They do not want to get caught; they want to catch us out, and that is why we must be prepared to adapt our rules to keep pace with technology. We cannot use an analogue approach to tackling criminals in a digital age. Such an attitude just is not safe, and I am not prepared to go back to Chelmsford and explain to my constituents there and in Great Baddow, Chelmer Village, Beaulieu Park and Old Moulsham that I was not prepared to support measures designed to make them all more secure.
I support the proposals that my right hon. Friend the Home Secretary has outlined to strengthen judicial commissioners’ oversight and give commissioners a role authorising national security notices and technical capability notices, but we must not lose sight of the essence of why we need these proposals: we need them to help our police and security agencies to better identify the internet activity of potential threats, and indeed victims of crime, so they can do their jobs more quickly and effectively.
The people outside Westminster who think this is about stopping people being rude on Twitter, or cleaning up the Facebook jungle, are wrong. The Bill is about protecting those rights—the right to be irreverent or to disagree; the right to surf the net without being at risk from those who would do us harm. The Government have acted properly by being prepared to listen and to think again to a degree that I have not often encountered in the past. They have considered carefully, and we should be careful not to assume that our police and security agencies do not need these powers as amended, with the new safeguards that have been promised today. For those reasons, I shall support my right hon. and hon. Friends in the Lobby tonight.
Mr John Hayes
On a point of order, Mr Deputy Speaker. Reference was made earlier to an exchange of correspondence that I enjoyed with the hon. and learned Member for Holborn and St Pancras (Keir Starmer). I wanted you and the House to know that that correspondence is now available in the Vote Office for the information of Members.
Mr Deputy Speaker (Mr Lindsay Hoyle)
That is certainly a good point of clarification. I call Harriet Harman.
Ms Harriet Harman (Camberwell and Peckham) (Lab)
I rise to speak in support of amendment 146, which stands in my name and those of fellow members of the Joint Committee on Human Rights. The Committee conducted legislative scrutiny of the Bill and published our report—a unanimous report—on 2 June. Like previous speakers in this debate and everyone in their right mind, we wanted to make sure that the Government and, acting on behalf of the Government, the security services have the right intercept powers to keep us safe, while at the same time respecting privacy and not invading it abusively. I thank the members of the Committee who worked on that scrutiny, the legal adviser to the Committee, Professor Murray Hunt, the Committee staff and those who gave evidence.
Because I hope to catch your eye when we debate the next group of amendments, Mr Deputy Speaker, I shall speak briefly to amendment 146, echoing the points made by the hon. and learned Member for Edinburgh South West (Joanna Cherry), who speaks on behalf of the Scottish National party. The amendment is about the role of the judicial commissioners. In essence, the commissioners are doing two things. First, they approve warrants issued by those who have the power to issue warrants—a very important role. A warrant that is not approved is a dead duck; it has to be stopped there and then. The role played by the commissioners in the approval process is set out in clause 21 and subsequent clauses. Secondly, the commissioners have an oversight and reporting function, which is set out in clause 194. They review and oversee the authorisation of warrants; they report to the Prime Minister and that report has to be published to Parliament.
It is a problem to have the same person both carrying out approval of a warrant and overseeing their approval of the warrant. The purpose of having all these measures in the Bill is to get them right. I pay tribute to the Home Secretary for her determination to understand and respond to the concerns. I hope that she will respond to the concern I am setting out now. I am not sure it is necessary to have two separate organisations, as the SNP proposes in its amendment; but I am absolutely sure that there has to be some separation of functions. Oversight of oneself is not realistic oversight.
Victoria Atkins (Louth and Horncastle) (Con)
Will the right hon. and learned Lady give way?
Victoria Atkins
The Joint Committee on the draft Bill debated this matter in some detail. We concluded that it is better for judicial commissioners to have experience on both sides of the fence, as it were, just as at the criminal Bar barristers tend to prosecute and defend, so that they have knowledge of both sides. Secondly, the Committee was optimistic that it would help to attract judges of the right calibre to apply to be auditors.
Ms Harman
It might well be useful for commissioners to have experience of both functions, but not at the same time and not using the same team of staff. I think ours is a relatively modest but important proposal. I am sure the hon. Lady can see that the arrangement could be clarified to create some sort of Chinese wall between the two functions. We are not suggesting that the functions be performed by separate organisations, but the hon. and learned Member for Edinburgh South West may be about to persuade us all that separate organisations are needed.
Joanna Cherry
I agree with the right hon. and learned Lady to an extent. Does her argument not boil down to the basic principle of Scots law and English law that no one should be a judge in their own cause? If one person grants a warrant then puts a different hat on and looks over whether that warrant was granted properly, they are being a judge in their own cause and there simply is not the proper transparency or oversight needed for public confidence.
Ms Harman
That is precisely my point. The Joint Committee on Human Rights and the independent reviewer have been helpful to the Government and bent over backwards in saying that separate organisations are not necessary—prima facie, one would say separate organisations are needed—but there should at the very least be Chinese walls. I therefore introduced the proposal in an amendment, and I hope to receive a response from the Government before the Bill goes to the Lords so that the matter can be looked at again, because we are a Joint Committee, and there are Members in the Lords who are eager to look at this. In the meantime, the Government’s responsibility, if they table amendments, is to submit a European convention on human rights memorandum with them. They have failed to do so. We regard those things as important. They are important for the House, so I urge them to do that. They should not table shedloads of amendments without producing an ECHR memorandum.
Lucy Frazer
Privacy is the right to be left alone. It was once proclaimed to be the most comprehensive of rights, and the right most valued by civilised men, which is why the privacy provisions in the Bill are important. There are many such provisions interweaved in the Bill. To give three important examples, targeted and bulk inception can take place only in the interests of national security, of tackling serious crime and of the economic wellbeing of the UK. It can take place only with judicial authorisation, and communications data—who, where, when—obtained from service providers have to be justified on the basis of a necessary and proportionate test. The relevant clauses all ensure that any interference with privacy is kept to a minimum.
I am pleased to have served on the Bill Committee, where the issue of privacy was raised with some force by the hon. and learned Member for Holborn and St Pancras (Keir Starmer). I am pleased that as a result of the points that he and other Members made the Bill will be amended with an overarching clause on privacy to further protect and ensure the privacy of individuals. As my right hon. Friend the Member for Chelmsford (Sir Simon Burns) said, new clause 5 provides for the public authority to have regard to the question of whether the action can be reasonably achieved by “less intrusive means”. It also provides a new requirement for the consideration of the public interest in the protection of privacy. New clause 6 provides for an overarching civil liability, adding to the extensive criminal penalties in the Bill.
Those safeguards strike the right balance between privacy and scrutiny. As the hon. and learned Member for Holborn and St Pancras said, safety, security and privacy are not an either/or. That balance has been recognised in Europe, where the ECHR provides under article 8 respect for private and family life and also states that interference by a public authority is legitimate in some circumstances—in fact, the very circumstances outlined in the Bill, including the interests of national security, public safety, the economic wellbeing of the country and the prevention of crime and disorder.
The same balance has been recognised by the UN. In 2014, the UN High Commissioner for Human Rights stated:
“Where there is a legitimate aim and appropriate safeguards are in place, a State might be allowed to engage in quite intrusive surveillance”
if
“it is both necessary and proportionate”.
That balance is recognised by the public. A TNS BMRB poll in 2014 stated that 71% of respondents prioritised the reduction of the threat posed by terrorists, even if that eroded people’s right to privacy. The Bill seeks to ensure that the balance is right, and in enacting it we ought to remember that interference with privacy is often too much until it is too little.
Mr George Howarth
It is a pleasure to follow the hon. and learned Member for South East Cambridgeshire (Lucy Frazer). She took the opportunity to highlight the big principles, and showed how they are included in UN documents and the ECHR. It is useful to be reminded of that.
I speak as a member of the Intelligence and Security Committee, and support the amendments and new clauses tabled by the right hon. and learned Member for Beaconsfield (Mr Grieve) and other members of the Committee, including me. I will not read them all out, because he dealt with them comprehensively. However, I wish to make some points about a couple of our proposals. Before doing so, however, I want to refer to the report that the ISC produced in the last Parliament after taking evidence on the provisions in the draft Bill. My right hon. Friend the Member for Slough (Fiona Mactaggart) and I both served on that Committee. I want to highlight two things in that report. First—and the right hon. and learned Member for Beaconsfield covered this—the overriding principle of privacy, which the hon. and learned Member for South East Cambridgeshire discussed, had to be made clearer in the Bill, and set out as unambiguously as possible.
Secondly, the right hon. and learned Member for Beaconsfield raised the issue of penalties. The measure does not exactly conform to what we wanted. We were concerned that the legislation was not consolidated into one measure. I shall deal with that more fully in a moment. Thirdly—if I do not take too much time dealing with the first and second concerns—I shall come on to the debate about judicial involvement in oversight. I hope to say a brief word about that.
I welcome new clause 5, which is helpful and goes much, if not all, of the way in meeting many concerns expressed by our Committee and by other parliamentary Committees, including Select Committees that have looked at the issue. However, in amendment 14—I know the Minister is going to refer to this, so I am not going to make a hard and fast principle out of it—we attempt to put privacy at the forefront of the Bill. If the Minister has found another way of doing that that would satisfy me I would be very pleased, but having read the Bill carefully, I do not think that there are sufficient safeguards to make it clear that that is the case.
The right hon. and learned Member for Beaconsfield referred to new clause 4, and was rightly exercised by the issue of penalties. I want to approach that issue from a slightly different direction. The Bill relies on existing legislation, including the Data Protection Act 1998 for which, if memory serves, I had ministerial responsibility. No apologies there—I think that the measure has served us quite well, although there might be other legislation for which I would apologise, but I am not going to say what it is. The Bill also relies on the Wireless and Telegraphy Act 2006, the Computer Misuse Act 1990, common law, as the right hon. and learned Member for Beaconsfield said, and, finally, misfeasance in public office. It is important that we have more information about penalties because, with such a sprawling collection of existing legislation, if someone breaks the provisions in any of those measures there should be clear and unambiguous penalties. I think that the Minister is going to address that matter shortly.
New clause 2 was tabled by the right hon. and learned Member for Beaconsfield, other members of the ISC and me. The right hon. and learned Gentleman made the point—nobody seems to have noted it, including the hon. and learned Member for Edinburgh South West (Joanna Cherry)—that a commissioner’s functions are not in any sense judicial. I am not going to argue the case fully at the moment, but I could envisage constructing a system where the process is more administrative—indeed, it is an administrative process—so the skills needed to operate it do not necessarily need to be judicial.
Tom Tugendhat
I am no lawyer, but having sat at the table of a judge for many years, I can tell the right hon. Gentleman that judges are well used to explaining their judgments. Indeed, if one reads their judgments, one will normally find an explanation so detailed that it would torture the mind, so I would not be at all surprised to hear that the commissioners will be very ready to give an explanation.
Mr Howarth
I have to say to the hon. Gentleman that that is not my experience. The right hon. and learned Member for Beaconsfield, who chairs our Committee, gave a specific example of where someone was unwilling not only to explain themselves but even to engage with the Committee. That is why I support new clause 2, which gives the Intelligence and Security Committee the ability to refer a matter to the commissioner and to at least give them a nudge in the right direction in terms of concerns that need to be looked at.
I do not share the complete pessimism of the hon. and learned Member for Edinburgh South West. The Bill has moved an incredibly long distance since the original draft Bill. There is some way to go, but we may hear further concessions today or tomorrow. However, I would be grateful if the issues I have raised could be addressed by the Minister when he replies.
Stephen McPartland (Stevenage) (Con)
I will keep my remarks short, Mr Deputy Speaker, as I appreciate that you want them to be short. I want to speak to new clause 16 and to amendments 189 to 195, but I will group them together.
I welcome new clause 5 because it puts privacy at the heart of the Bill. Although I found the draft Investigatory Powers Bill to be some kind of absolutely Orwellian nightmare that I would never have been able to support, this Bill goes some way towards being something that I would be able to support. It is horrible that we live in a society where this House, as a cross-party organisation, will have to legalise mass surveillance of every man, woman and child in the United Kingdom who has an electronic device, but sadly that is the society we live in, and we have to have a trade-off between what keeps us free from terrorism and what keeps us free in terms of privacy. I appreciate the Government’s efforts in trying to put privacy at the heart of the Bill.
On my new clause and my amendments, I want to look at possibly introducing into the Bill notification of surveillance against innocent people. I have tabled 63 amendments because I know there will be a review before the Bill gets to the upper House. The Government have been incredibly conciliatory and have provided concessions all the way through. I consider both the Ministers on the Front Bench friends, and I have been speaking to them about the Bill for many months—for well over a year, in fact. I have tried to be constructive in my disagreements with them; my amendments are probing amendments—they are there not to cause difficulty but to try to tease out more information.
The Bill fails to provide a viable system of notification of surveillance, particularly for those who have been wrongly surveilled. The current drafting covers only error reporting, and it places a higher importance on public interest—I understand that that is the source of the dispute about whether we should have new clause 5 or new clause 21, in terms of privacy and what is in the public interest. The concepts of public interest and serious error are difficult to define, and that leads to the problem of the judicial commissioners and others having to decide what those concepts are, and whether there are varying degrees of them. I want the Bill to state very clearly what we want them to be, so that we do not have that mission creep.
Adding notification to the Bill through a new clause would go some way towards ensuring that privacy is further enhanced as the backbone of the Bill. To put the issue into context, the countries that permit notification of surveillance include America, Canada, New Zealand, Germany, Belgium, the Netherlands, Austria, Ireland, Switzerland, Slovenia, Montenegro and Hungary, so this is not something that will be specific to the United Kingdom, and we will not be leading the way; we will be trying to catch up with our partners. I appreciate that each of those countries offers a different threshold in terms of how people will be surveilled, but there is no possibility of notification in the Bill at the moment. The Ministers have been very conciliatory, and if they want to intervene on me to say that they will accept my new clause 16, I will happily sit down. No, I didn’t think so. Never mind—we will keep trying.
Mr John Hayes
I am not going to surprise my hon. Friend or the House, but he will have noted that the changes we have brought forward to the Bill mean that if a serious error has been identified by the commissioner, the individual concerned will be notified. That is a significant and new provision, which goes some way towards satisfying his desire. Perhaps he can meet me halfway.
Stephen McPartland
I will certainly meet the Minister halfway, because I will not call a vote on my provisions, or vote against him on this aspect of the Bill. Obviously, I would like to get my own way, but I appreciate that this is about compromise, and both Ministers have been very good at compromising over the course of the Bill.
On error reporting and notification, it is worth noting the views expressed in sections 613 to 622 of the report by the Joint Committee on the draft Investigatory Powers Bill. I will not read them all out—you would not like that, Mr Deputy Speaker—but I would like to pull a few highlights out. The report states:
“Clause 171 provides that the Investigatory Powers Commissioner must inform a person about any ‘serious error’ when the Investigatory Powers Tribunal agrees the error is serious”,
and when that is in the public interest. But why would it ever be in the public interest to inform somebody that the error was serious? I cannot imagine that it would ever be in the public interest to do so, so they would never be informed.
The report also noted that the Bingham Centre for the Rule of Law felt that the approach in the draft Bill to error reporting was a matter of profound concern. Similarly, the Interception of Communications Commissioner’s Office believed the provisions in the clause were weaker than the current well-established powers. The requirement that an error should cause significant prejudice or harm was also criticised for setting a very high bar. In addition, the test was criticised by the Law Society of Scotland, Privacy International, the Interception of Communications Commissioner’s Office and Amnesty International UK for being poorly defined.
Victoria Atkins
I will be grateful to my hon. Friend if he can answer this question; it may negate the need for me to make a speech on this point. I have looked very carefully at new clause 16 and, indeed, new clause 1, and I cannot find any reference to “error” in them. New clause 16 seems to be a general clause of notification to anyone who is subject to a warrant. Is that correct?
Stephen McPartland
I certainly do not take any credit for being good at drafting new clauses. New clause 16 may not mention “error”, but I think it is mentioned in amendments 189 to 195, with which it should be considered. In “A Question of Trust”, David Anderson, QC, recommended that the judicial commissioners be given the power to report errors to individuals. I appreciate that the Minister has moved towards my point of view.
In conclusion, the Joint Committee made two recommendations. The first was that referral to the Investigatory Powers Tribunal was unnecessary and cumbersome and created a brake on the notification of errors. The second was that the error-reporting threshold should be reviewed so that it was more specific and defined.
Mr Alistair Carmichael
New clause 1 stands in my name and is supported by Scottish National party Members. It is remarkably similar to new clause 16, to which the hon. Member for Stevenage (Stephen McPartland) has just spoken. He says that his is a probing amendment; I regard mine as more than that, but I shall wait to hear what the Minister has to say when he replies to the debate.
I will preface my remarks on new clause 1 by highlighting some more general concerns. I absolutely agree with the hon. and learned Member for Edinburgh South West (Joanna Cherry) that the way in which today’s proceedings are being conducted is highly unsatisfactory. The time allowed is clearly insufficient. The Government have done themselves no favours, because all they do by insisting on conducting proceedings in this way is throw a bone to those in the other place and allow them to justify the greater degree of scrutiny that they will inevitably give to the Bill. It has already been referred to as a constitutional Bill that countenances the most egregious interference with individual liberty by the state. Such scrutiny ought to be done by this elected Chamber.
The fact that the Government are still taking on board amendments after the draft Bill, the report by David Anderson, QC, and the debate in Committee indicates an unsatisfactory attitude on their part. It shows that they are not yet putting privacy at the heart of the Bill, and that they are being dragged kicking and screaming to that position. On new clauses 5 and 21, it is unsatisfactory that the best provision has been proposed by the hon. and learned Member for Holborn and St Pancras (Keir Starmer), who speaks for the Opposition, and that we will not get to that unless we first vote down an inferior proposal that, while adequate and an improvement, is not as good as that proposed by the official Opposition. I reiterate a point that I made in an intervention on the hon. and learned Member for Edinburgh South West: the Government will still have the opportunity, if they are minded to take it, to insist on their version in the other place at a later stage, but this House should be empowered to express a view on new clause 21, which for reasons of procedure it is not able to do at present.
The thinking behind new clause 1 is that sunlight is the best disinfectant. The question of whether the Government will accept the approach suggested by us and the hon. Member for Stevenage relates to the question of whether privacy is at the heart of the Bill. As things stand, an individual will be able to find out whether they have been the subject of intrusion under the Bill’s powers only through a whistleblower or public interest litigation. It is a question of happenstance. If the Government are sincere and prepared meaningfully to protect our liberties and individual rights, they should not object to a process with all the necessary safeguards, as outlined in new clause 1. There should be no objection to notifying those who have been the subject of surveillance once the surveillance has concluded. As the hon. Gentleman has pointed out, that idea is not novel. It happens in a number of jurisdictions and has already been the subject of judicial approval and, indeed, instruction from the European Court of Human Rights in two cases, namely Klass v. Germany in 1978, and Weber and Saravia v. Germany in 2006.
Stephen Hammond (Wimbledon) (Con)
I understand that you would like Members to be brief, Mr Deputy Speaker. I am not a lawyer and I was not a member of the Bill Committee, so I will be brief.
On Second Reading, I spoke about an issue that has not yet been discussed today: economic cybercrime, which I have spoken about frequently in this House. The Government’s amendments enhance our ability to attack it. Constituents write to us as Members of Parliament; my hon. and learned Friend the Member for South East Cambridgeshire (Lucy Frazer) has mentioned the huge number of privacy-related issues that have been raised, including the need to ensure that, if the Government were to interfere with the right to privacy, there would be proper oversight, safeguards and transparency. I do not need to re-rehearse her arguments, but I say to the Government and my right hon. Friend the Minister for Security that while new clause 5 may not be as perfect as those lawyers present would like it to be, it goes a long way towards satisfying the public.
I want to address two aspects of new clause 5. First, our constituents are interested in the issues covered by subsections (2)(a) and (4)(c). The onus is now on the need to consider less intrusive means and proportionality. That is an obligation. Notwithstanding my hon. and learned Friend’s comments about the need to understand the exact penalties for misuse, those two particular subsections go a long way to putting in place some protection.
Secondly, on economic cybercrime, we often talk about huge attacks on bank systems. New clause 5(2)(b) and (4)(b) relate to not just the public interest in detecting serious crimes, but the integrity and security of telecommunication systems and postal services. The reality is that there is a huge amount of low-level cybercrime that then moves into more serious economic cybercrime. By addressing the issue in the Bill, we are making a statement of intent. Given that there are so many e-commerce transactions today, it is hugely important that we protect and maintain the integrity of telecommunication systems, in the widest sense of the term, and postal services.
Whatever else may be, those of us who are not lawyers —we are not entirely sure what the difference is between new clause 21(2)(a) and (b), and new clause 5(4)(d) and (e), but I am looking forward to my right hon. and learned Friend explaining it—say “Well done” to the Government. New clause 5(2)(b) and 5(4)(b) protect all e-commerce, and putting the emphasis on maintaining the integrity of services, particularly telecoms services, will take away some of the public’s criticisms about the snoopers’ charter. The key points about subsections (2)(b) and (4)(b) are extraordinarily important, and I am pleased to see them in the Bill.
Tom Tugendhat
It is a great pleasure to speak on Report, particularly as the heirs of Walsingham and Egerton are on the Treasury Bench sitting in judgment over a Bill that will shape our civil liberties. In their day, Walsingham broke the code, and Egerton tried Mary, Queen of Scots. The techniques that they used are still in active use today, but they have been updated. It is a question no longer of codes on paper, smuggled out in brandy bottles, but of codes hidden in computer messages, apps and other forms of communication. That is why I welcome the Bill, which updates historical practice for the present day. It is essential that we put this into statute, because for the first time we are putting into a Bill what we actually mean. For years, the state has used interpretations of legal practice rather than setting out, and debating properly, what it should do. That is why I particularly welcome the joint approach to the Bill. The hon. and learned Member for Holborn and St Pancras (Keir Starmer) has been instrumental in bringing a co-operative mood to the House, and I am grateful to him for doing so.
The Bill balances privacy against other considerations. As my hon. and learned Friend the Member for South East Cambridgeshire (Lucy Frazer) pointed out, privacy is a fundamental right of all British citizens, and one that we have enjoyed for many years. But that privacy is only worth anything if we can live in safety, not just from the obvious risk of terrorism but from the risks of child abuse, drug smuggling and other forms of violence against the people of this country. I am grateful for the fact that the Government have balanced that privacy against those threats.
I will leave it there, because there are many more amendments to come. I could address some of them in detail, and perhaps I will be called to speak again.
Victoria Atkins
I had the privilege of being a member of the Joint Committee and of the Bill Committee, so I feel as though I have lived with this Bill for many months. I will be happy to see it become law when that happens. This Bill is vital in the modern age, and it is above party politics. It is about doing the right thing for our country and for our constituents.
The Joint Committee and the Bill Committee scrutinised the Bill intensively, and I think we considered something like 1,000 amendments in the Bill Committee. I am happy to say that we managed, nevertheless, to find some areas of agreement, namely that it was necessary to introduce a Bill to set out the investigatory powers of the security services and law enforcement agencies, and to update the scrutiny and transparency of those powers and the people who use them. It is a credit to everyone, on both sides of the House, who supports the principle of the Bill.
I welcome, as others have done, new clause 5 and Government amendment 30, which will put all related criminal offences in the Bill. That will create transparency by making the misuse of these powers absolutely obvious. I want to look at two proposed new clauses that have not received the same level of scrutiny as the Bill has enjoyed; I shall endeavour to change that in the next couple of minutes. New clause 1— the notifying criminals clause, as someone remarked to me—raises grave concerns about our impact on fighting crime and terror. I am conscious that the right hon. Member for Orkney and Shetland (Mr Carmichael), who tabled the new clause, is not his place. For anyone who has not read it, it would require the police and security services to notify, within 30 days of a warrant ending, anyone who has been investigated. There is no requirement for an error to have occurred, or anything of that nature. The only requirement is that someone’s data have been investigated.
James Cartlidge (South Suffolk) (Con)
On the point about a time limit of three months, is my hon. Friend aware that in 58% of requests for communications data in child abuse investigations, the data are more than six months old?
Victoria Atkins
Very much so. That shows the time sensitivity of many investigations, and I am grateful to my hon. Friend for bringing it up. We know from evidence sessions in both Committees that 100% of counter-terrorism cases and 90% of serious organised crime cases involve communications data evidence. We are talking about very serious cases indeed. My concern about new clause 1 is that it in no way removes the risk that high-level criminals and terror suspects will be told that they have been investigated by law enforcement and the security services. Such people are more likely to be the subject of warrants because of their criminality, so we would be handing the investigations to those criminals on a plate.
Tom Tugendhat
The level of encryption available in public today is such that new clause 1 would allow criminals to hide the deeds that they had formerly left unhidden, and therefore it would expose the country to even greater threat.
Victoria Atkins
That is exactly right. My hon. Friend makes the point that I was about to make, in fact.
Victoria Atkins
Not at all. [Interruption.] It has never stopped me before. The new clause will help criminals to evade investigation, arrest and prosecution. Serious organised crime gangs and terrorists talk to each other. They compare notes on investigative activities, whether ongoing or not. It will not necessarily be the first, second or third notification that starts to hint at the methodology of the police; it may be the 20th, but none the less those hints about patterns of behaviour will begin to emerge in the criminal world. Why on earth would this House pass legislation that would give serious organised crime gangs and terrorist gangs such an advantage?
Gavin Robinson (Belfast East) (DUP)
The hon. Lady is making a powerful point, but she is talking about a fear of what may be to come. Is she aware that already in Northern Ireland, a chief dissident republican has had the case against him dropped because the judge ordered that the security service had to unveil its surveillance techniques? If that is the case already, imagine what would happen if every dissident republican and every terrorist in the country got notification.
Victoria Atkins
I am extremely grateful for that intervention, which shows powerfully just how important this is. I am conscious of the time, so I will make just one more point about new clause 1. Subsection (1)(e) sets out that people are to be told if they have been informed on by covert human intelligence sources. That means informants, in everyday language. The new clause, if passed, would help criminal gangs to find out who is informing on them—and, presumably, to do great harm to those informants, because no criminal likes a grass.
I am conscious that new clause 16 mirrors much of new clause 1. It does not, in fairness, contain the reference to CHISs, but the fact is that it will have a similarly devastating effect on law enforcement and security service operations in this country.
Fiona Mactaggart
It seems to me that the reason for these amendments is the sense that there is not sufficient accountability in the secret services and other bodies. To that end, would the hon. Lady support new clause 2, proposed by the Intelligence and Security Committee, which would ensure that there could be proper investigation by a commissioner of anything that we felt required it?
Victoria Atkins
I hesitate to do the job of my Front-Bench colleagues, and I know that the Solicitor General will respond to that point.
I will finish by saying that the amendments and new clauses on privacy proposed by the Government reflect the fact that the scrutiny of the Bill has worked thus far and has been a worthwhile exercise. I hope that new clauses 1 and 16 will not trouble this House, because the Bill as it stands is much stronger for the many months of scrutiny it has received.
Caroline Nokes (Romsey and Southampton North) (Con)
It is a pleasure to follow my hon. Friend the Member for Louth and Horncastle (Victoria Atkins). This Bill runs to the absolute heart of Government—the duty to keep us safe. I will keep my very brief remarks to the issue of privacy, which was raised in Committee and remains a point of debate.
Nobody wishes to legislate to protect the public while at the same time unfairly and unreasonably restricting the rights of the individual. None of us wishes to give the state unnecessary powers. It was against such arbitrary authority that our first charter of rights, Magna Carta, was established, and why we can to this day find written into the stone floor of Tewkesbury abbey the words:
“Magna Carta est lex, caveat deinde rex”.
Magna Carta is law, and let the king beware. Today, as we debate the power of the state, I believe it is most certainly not the Head of State who threatens our law and safety, but those who threaten our state from within, and we must make our law accordingly.
The amendments that the Government have tabled on privacy protections go further than ever before in transparency, oversight and the safeguards that apply to the powers in the Bill. A great deal of advice has come from the Public Bill Committee, the ISC and the Opposition parties, and the Government have indeed listened. The amendments make it clear that warrants or other authorisation should not be granted where information could reasonably be obtained by less intrusive means. If the information is already on the internet—let us face it, there is plenty of such information—it can be got without recourse to the Bill’s provisions. The Government amendments also require persons exercising functions under the legislation to have regard to the public interest and the protection of privacy, as well as other principles that underpin the legislation. The amendments also make clear the criminal offences that apply to the misuse of powers under the Bill, which puts beyond doubt the severe penalties that would apply in the event of deliberate wrongdoing by a public authority.
Privacy is at the heart of this vital piece of legislation, but its point is protection. The House should remember the statistics cited by my right hon. Friend the Member for Chelmsford (Sir Simon Burns), which I do not intend to repeat. We must be very careful not to dilute the Bill so much that the ability of our agencies to keep up with technology and those who use it in a very sophisticated way to do us harm is itself harmed. The baby must stay in the bath, while the dirty water is thrown out.
I know there has been a lot of interest in the Bill, but I also know that the amendments to it need to be weighed, rather than counted. In my estimation, it is a sound and important Bill. It will ensure that the warning in Tewkesbury abbey can be amended for our own time: “Magna Carta est lex, caveat deinde nequam”—Magna Carta is law, and let criminals beware.
Mr Alan Mak (Havant) (Con)
It is a pleasure to follow my hon. Friend the Member for Romsey and Southampton North (Caroline Nokes). Having spoken on Second Reading, when I focused on economic cybercrime, and having followed the progress of the Bill, I want to make a few brief remarks on the first group of amendments, particularly Government new clause 5.
Privacy is the ability of an individual or a group to seclude themselves or information about themselves and thereby to express themselves selectively. The boundaries and content of what is considered private differ among cultures and individuals, but they share common themes. It was not a Latinist, but the Colombian novelist and Nobel prize winner Gabriel García Márquez who once observed:
“Everyone has three lives: public, private and secret.”
However, we all know there are some in our society whose secrecy cannot be allowed to prevail and whose privacy cannot be a shield that allows crimes to be committed, whether those crimes are terrorism, child abuse, people trafficking or cybercrime.
There are people who, as my hon. Friend the Member for Tonbridge and Malling (Tom Tugendhat) mentioned, attempt to hide from the rest of society behind passwords, encryptions and codes known only among themselves. Because of the speed of technological change, they are operating not just outside the law, but ahead of it. That is why the law must catch up, and the Bill, with the Government new clauses, will achieve such a goal.
If we are to enhance the law and to codify the powers that our security services need to keep us safe, we must ensure that the oversight regime is robust and satisfies the other watchdogs of our liberty—Parliament and the press. The Bill creates a world-leading oversight regime that brings together three existing commissioners and provides new powers and resources for a new independent Investigatory Powers Commissioner. Under the Bill, warrants must be subject to a new double lock in that they must be approved by the judicial commissioner before they can be issued by the Secretary of State.
Privacy is the mirror image of oversight, and the Bill and its amendments go very far in protecting individual rights. In particular, the Bill sets out the very specific circumstances in which the powers it provides for can be used. It makes clear the purposes for which those powers can be used, the overarching human rights obligation that constrains the use of those powers and whether each of the powers in the Bill is to be used in a targeted way or in bulk. The Bill goes on in that vein.
I believe that the Government have listened, acted and got the balance right between the powers necessary to keep us safe, the right to privacy of the individual and the oversight necessary to ensure that neither privacy nor safety is compromised. In conclusion, the Bill represents the pragmatic pursuit of safety in the modern age and an effective renewal of the law in the digital age. I urge the House to support its passage tonight and in the coming days.
Chris Green (Bolton West) (Con)
We know that, since 2010, the majority of security services’ counter-terrorism investigations have used intercepted material in some form to prevent those seeking to harm the UK and its citizens from doing so. It is vital that our security services are able to do their jobs well to maintain the operational capabilities of our law enforcement agencies and to prevent terrorism and other serious crimes. Living in the modern world with modern methods of communication, we must ensure our security services have the powers they need to keep us safe, while at the same time addressing privacy concerns and not inadvertently damaging the competitiveness of the UK’s rapidly expanding technology sector or communications businesses more widely.
I will not dwell on the privacy and oversight matters that so many right hon. and hon. Members have dealt with, but go straight on to the impact on the technological sector, which was covered by the Science and Technology Committee’s short inquiry on the Bill. One of the main concerns I heard from the technology sector in evidence sessions was the view that there needs to be more clarity about the extraterritorial application of the Bill and more consideration of its compatibility with the legislation of other nations. Failure to provide clarity will make it harder for the Government to achieve their own aim of delivering world-leading legislation. I am pleased that the Government have listened to the Committee’s concerns about industry, and that they intend to develop implementation plans for retaining internet connection records in response to the Committee’s recommendations.
In responding to the revised Bill, TechUK has praised the fact that the Government have responded to the criticism about ICRs. However, it has raised concerns that, despite that, no single set of data will constitute an internet connection record and that, in practice, it
“will depend on the service and service provider concerned”.
This highlights the difficulties that industry will face if required to generate and retain ICRs.
Although the Bill does not go as far as the Science and Technology Committee would have liked, by putting 100% of cost recovery into the Bill, the supporting documents reaffirm the Government’s long-standing position of reimbursing 100% of the costs. I am pleased that the Government have listened to the pre-legislative scrutiny that it and the Committees have provided.
In conclusion, although finding the balance between privacy and security is not an easy task, I believe that Britain needs to put in place this legislation to bring together powers, which are already available to law enforcement agencies and the security and intelligence agencies, to protect the British people and to ensure our security services have the tools to keep us safe in modern Britain.
Simon Hoare
It was my pleasure to serve on the Bill Committee for most of its sittings. I put on the record my thanks to my right hon. Friend the Member for Chelmsford (Sir Simon Burns) for taking my place when I had to leave the Committee.
It is always with some reluctance, if not trepidation, that I raise a question on a point made by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), not only because I am not right honourable, but because I am not learned, as I am not a lawyer. When my hon. and learned Friend the Solicitor General sums up, I invite him to try to address a concern that is exercising my mind, about a possible unforeseen consequence of new clause 2, namely the confliction and conflation of judicial and Executive oversight. My view is that those two things are best kept entirely separate. I fear that it may be an intended, or, as I would hope, an unintended consequence of what my right hon. and learned Friend the Member for Beaconsfield has suggested that the two might merge in a rather unsatisfactory and possibly even anti-democratic way.
Mr Grieve
I certainly would not wish to see the two conflated, but—to reassure my hon. Friend—I really do not think that that is the case. The point at issue is that the commissioner has a specific power of investigation of particular things, whereas the Committee looks at the generality. It seems to me very much in the public interest that the Committee should be able to refer to the commissioner something that it thinks the commissioner might look at. All we ask of the commissioner is that he should acknowledge that and indicate to us whether he is minded to look at it. Beyond that, it is entirely a matter for him. There needs to be some formal structure, because otherwise there is the risk that that communication will not be there.
Simon Hoare
I am grateful for my right hon. and learned Friend’s clarification. That might be the intention of the structure but I still have that reservation and look to the Solicitor General either to confirm what our right hon. and learned Friend has said or to confirm or address my suspicion.
This is probably the most important Bill that we will deal with. I support new clause 5, and think that it amplifies incredibly well the approach that Members on the Treasury Bench and the Opposition Front Bench took in Committee. The words, tone, tenor and approach of the hon. and learned Member for Holborn and St Pancras (Keir Starmer) are to be welcomed. I always contended that the rights and the importance of the privacy of our constituents were an unspoken golden thread running through the Bill. Through new clause 5, the Government have decided—I therefore support them in doing this—that as those rights are not always implicit they should be made explicit.
Like my hon. Friend the Member for Louth and Horncastle (Victoria Atkins), I will oppose new clauses 1 and 16. It seems to me utterly and totally counterproductive and counter-intuitive to give those who have been investigated, either correctly or incorrectly, notice of the fact that they have been. I take slight issue with the hon. and learned Member for Edinburgh South West (Joanna Cherry)—she will not be surprised at that. In Committee, I was never convinced that her party got the fact that we were talking about delivering security and safety for our constituents. This Bill does so. This is not an abstract theoretical debate in a law faculty; it is about providing security and safety for our citizens—the first duty of all of us.
I am pleased with the Government’s approach and the way in which they have responded. I am grateful for the tone of the Front Bench team and look forward to supporting the Bill as it progresses through the House.
Huw Merriman (Bexhill and Battle) (Con)
Much of the Bill as it currently stands is about drawing together many strands of existing legislation, much of which has been criticised previously for being written in an arcane and inaccessible manner, and about providing more protection of and ensuring compliance with our fundamental human rights. I therefore welcome the Bill, as it makes matters much clearer, and preserves powers and the rights that we hold so dear while protecting our constituents from more modern forms of terrorism, which we must all be so wary of and do everything we can to protect against. In assessing the oversight regime I will focus on the roles of two bodies that in my view provide sufficient oversight and checks and balances on the use of investigatory powers, in the light of the Government provisions that we are debating today.
The Solicitor General
I am sure hon. Members on both sides will forgive me if I have to canter through all the issues that have been raised at the pace of a Derby thoroughbred and so do not name them in turn. I am grateful for the thrust of the debate, which dealt very much with the historic but continuingly important balance between the need to protect the individual’s right to privacy—a right against intrusion—and the clear national interest in making sure that the agencies responsible for the detection and prevention of crime and terrorism have the tools to do the job.
I will deal first with new clause 21, which has taken up much of the debate. In an intervention on the hon. and learned Member for Holborn and St Pancras (Keir Starmer), my right hon. Friend the Minister for Security indicated that we will consider the position with regard to new clause 5 very carefully. That is indeed the case. It seems to me that we are very close indeed on the provision on privacy. There is one issue, namely the effect of the Human Rights Act. I would say that it is axiomatic that all public bodies are subject to that Act, so an amendment to make that even clearer is not necessary. However, we are going to consider the matter very carefully, and I invite further deliberation in another place. In that spirit, I invite hon. Members on all sides to support Government new clause 5. As someone who has consistently advocated action on privacy by this place, as opposed to leaving it to the courts, I am delighted to see that new clause being placed in a major piece of legislation that I hope will stand the test of time.
I shall now deal with amendments tabled on behalf of the Intelligence and Security Committee. I am grateful to its members for their careful consideration of the Bill. In an intervention on my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), the Committee Chair, I indicated the Government’s position on amendment 18. Amendment 8 relates to the underlying internal safeguards. The Government are happy to accept this amendment so that greater clarity and reassurance to Parliament and the public can be provided. Let me make it crystal clear that the remit of the Investigatory Powers Commissioner will include oversight of the internal handling arrangements and processes that enable compliance with the Bill’s safeguards.
I have already indicated that in principle the Government accept the first part of new clause 2, which concerns the referral of issues to the Investigatory Powers Commissioner, and we will table an amendment in the other place to give effect to that intention. As I said, however, I have rather more hesitation with regard to reporting. In agreeing the principle of reference and referral, we are already creating that line of communication that, as my right hon. and learned Friend said, was not working in one respect.
I am grateful to my hon. Friend the Member for North Dorset (Simon Hoare) for directly outlining some of the tensions that still exist with regard to the judicial status and independence of the Investigatory Powers Commissioner, and a role that could lead to an overlap or—dare I say it?— confusion, given how important it is to have clear lines of authority and reporting.
Mr Grieve
I realise that time is short. The Minister has gone a long way towards reassuring me, and I certainly do not wish to press this issue to a vote unnecessarily. However, if there is a reference mechanism, an obligation of acknowledgement and at least an indication of what is happening and a report back seem eminently reasonable—after all, the Intelligence and Security Committee exists on Parliament’s behalf to provide scrutiny. I simply do not see how it undermines any element of judicial independence whatsoever.
The Solicitor General
I am not saying that the new clause is unreasonable; I am simply being cautious about the need for those involved—namely the commissioner—to be part of the process, and to be consulted if there is to be such a change. With regret, I cannot at this stage support that part of the new clause, but I am grateful to my right hon. and learned Friend for the clear, careful and considered way that he and the Committee have put that point.
New clause 4 relates to clarity on criminal offences. The Minister for Security has properly said that the Government will undertake to prepare a schedule of existing criminal law, and I think he will find that whatever our arguments about the level of penalty in the Data Protection Act, every bit of potential misconduct or criminality that could be carried out under the Bill will be covered by existing criminal law. As practitioners in the field for many years, my right hon. and learned Friend and I are always anxious about the creation of unnecessary new criminal offences. My simple argument is that I am not persuaded that new clause 4 would add anything to criminal law or achieve the sort of clarity that he and others seek, and I am therefore not persuaded and able to accept the new clause.
Let me move swiftly to the amendments on judicial commissioners which were tabled by the hon. and learned Member for Holborn and St Pancras. I listened carefully to the arguments, and I agree that there is real merit and value in providing expertise from the heads of the judiciary in the appointment process. I also believe that there is a role for the Lord Chancellor in these appointments. He has responsibility for ensuring that the Courts and Tribunals Service has enough judges to operate effectively. Given the limited number of High Court judges, these appointments could affect that. Involving the Lord Chancellor in making a recommendation on appointment would help to avoid any accusations of judicial patronage. On the basis that we will table an amendment in the other place to fulfil that aim, I invite the hon. and learned Gentleman to withdraw his amendments.
Let me deal quickly with the judicial appointments commission and the amendment tabled by the hon. and learned Member for Edinburgh South West (Joanna Cherry). I am persuaded by the argument of Lord Judge who, when asked in the Bill Committee about that matter, said:
“there is no point whatever in involving the Judicial Appointments Commission”.
Why? Because judges will have been through the process themselves, and the measure is therefore completely otiose.
On the hon. and learned Lady’s other amendments, I am still not persuaded that the creation of an independent non-departmental public body—namely the investigatory powers commission—would add anything to the thrust of reforms that we are already undertaking, other than cost to the taxpayer. I therefore do not think that creating a new statutory body will add anything to the public interest, which is what we are trying to serve.
The right hon. and learned Member for Camberwell and Peckham (Ms Harman) chairs the Joint Committee on Human Rights, on which I served in the previous Parliament. She is not currently in her place, but I wish to deal with the question of the Chinese wall. She was right to make the concession about David Anderson, who himself said there should be a relationship between the judicial authorisation function and the inspectorate. Indeed, there needs to be a distance, but creating the sort of division envisaged in the amendment would break the important link that exists to allow those who review fully to understand how the process works in practice. For that reason, the Government will seek to resist that amendment if it is pushed to a vote.
My hon. Friend the Member for Louth and Horncastle (Victoria Atkins) clearly and eloquently set out her objections to the amendments tabled in the name of the right hon. Member for Orkney and Shetland (Mr Carmichael) and others on notification. I cannot improve on her argument, except to say that comparisons with other jurisdictions are somewhat invidious, bearing in mind the differing natures of, for example, an inquisitorial process as opposed to the adversarial process that we use in the United Kingdom. My worry is simply that those who are continuing in their criminality will change their behaviour as a result of notification. For that reason, the Government cannot accept the amendment.
On amendment 482, I am happy to consider how to make it absolutely clear that whistleblowers can make disclosures to the IPC without fear of prosecution. I agree that that should be the case, and I will consider how to amend the Bill to bring even greater clarity to that issue. Amendments can also be tabled in the other place, which I hope the hon. and learned Member for Edinburgh South West will take on board when considering her party’s position.
On the wider amendments to the Investigatory Powers Tribunal, let us not forget that the Bill already represents a significant step forward. The only route of appeal available to complainants from decisions of that tribunal is currently a direct reference to the European Court of Human Rights. We are now establishing a domestic right of appeal that allows parties to seek redress in the United Kingdom, and that will also lead to greater speed. My concern is that if every decision of the IPT could be made subject to appeal, the operation of that body would grind to a halt, which I know is very much the view of its president. Currently, only 4% of claims questioning the tribunal’s work have any merit to them, so I am worried about the increasing expense and loss of efficiency that would result.
Similarly, the amendment that would force public hearings would, I am afraid, remove the tribunal’s discretion in deciding how best to operate in the public interest. It currently regularly holds public hearings and publishes copies of its judgments when appropriate.
The requirement to appoint special advocates is unnecessary—I argued that case forcefully in Committee. I can see no reason for departing from the position on declarations of incompatibility with the Human Rights Act, because only a small number of courts currently have that reservation.
I will close with this remark: privacy is now very clearly at the heart of the Bill. I am very proud of that, and Members on both sides of the House will agree that this is a job well done.
Question put and agreed to.
New clause 5 accordingly read a Second time, and added to the Bill.
The Solicitor General
I beg to move, That the clause be read a Second time.
Mr Speaker
With this it will be convenient to discuss the following:
Government new clause 8—Further provision about modifications.
Government new clause 9—Notification of major modifications.
New clause 20—Power of Secretary of State to certify warrants—
“(1) The Secretary of State may certify an application for a warrant in those cases where the Secretary of State has reasonable grounds to believe that an application is necessary pursuant to section 18(2)(a) (national security) and involves—
(a) the defence of the United Kingdom by Armed Forces; or
(b) the foreign policy of the United Kingdom.
(2) A warrant may be certified by the Secretary of State if—
(a) the Secretary of State considers that the warrant is necessary on grounds falling within section 18; and
(b) the Secretary of State considers that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct.
(3) Any warrant certified by the Secretary of State subject to subsection (1) is subject to approval by a Judicial Commissioner.
(4) In deciding to approve a warrant pursuant to this section, the Judicial Commissioner must determine whether—
(a) the warrant is capable of certification by the Secretary of State subject to subsection (1);
(b) the warrant is necessary on relevant grounds subject to section 18(2)(a) and subsection (1)(a) or (b); and
(c) the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct.
(5) Where a Judicial Commissioner refuses to approve the person’s decision to approve a warrant under this section, the Judicial Commissioner must produce written reasons for the refusal.
(6) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, approves or refuses to approve a warrant under this Section, the person, or any Special Advocate appointed, may ask the Investigatory Powers Commissioner to decide whether to approve the decision to issue the warrant.”
Amendment 267, in clause 15, page 12, line 3, leave out “or organisation”.
These amendments would retain the capacity of a single warrant to permit the interception of multiple individuals but would require an identifiable subject matter or premises to be provided. This narrows the current provisions which would effectively permit a limitless number of unidentified individuals to have their communications intercepted.
Amendment 25, page 12, line 7, leave out “or” and insert “and”.
On behalf of the Intelligence and Security Committee of Parliament, to limit the potentially broad scope of thematic warrants involving people who “share a common purpose” by ensuring that they also must be engaged in a particular activity.
Amendment 131, page 12, line 8, after “activity” insert
“where each person is named or otherwise identified”.
These amendments seek to make more specific the currently very broadly worded thematic warrants in the Bill, to make it more likely that such thematic warrants will be compatible with the requirements of Article 8 ECHR as interpreted by the European Court of Human Rights.
Amendment 268, page 12, line 9, leave out “or organisation”.
See amendment 267
Amendment 132, page 12, line 11, after “operation” insert
“where each person is named or otherwise identified”.
See amendment 131.
Amendment 272, page 12, line 12, leave out paragraph (c).
See amendment 267.
Amendment 306, page 12, line 13, leave out subsection (3).
See amendment 267.
Amendment 218, in clause 17, page 13, line 8, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 219, page 13, line 10, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 220, page 13, line 13, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 221, page 13, line 16, leave out subsection (1)(d).
Amendment 222, page 13, line 20, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 223, page 13, line 22, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 224, page 13, line 24, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 225, page 13, line 27, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 226, page 13, line 3, leave out subsection (2)(d).
Amendment 227, page 13, line 35, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 228, page 13, line 37, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 229, page 13, line 39, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 230, page 13, line 42, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 231, page 13, line 45, leave out subsection (3)(d).
Amendment 232, page 14, line 5, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 233, page 14, line 8, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 234, page 14, leave out lines 11 and 12.
Amendment 235, page 14, line 13, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 312, in clause 18, page 14, line 22, leave out paragraph (c).
See amendment 313.
Amendment 313, page 14, line 24, at end insert—
‘(2A) A warrant may be considered necessary as mentioned in subsection (2)(b) and (3) only where there is a reasonable suspicion that a serious criminal offence has been or is likely to be committed.”
These amendments would require that there is reasonable suspicion of serious crime for a warrant authorising interception and delete the separate subsection relating to economic well-being of the UK.
Amendment 236, page 14, line 30, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 237, page 14, line 31, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 262, page 14, line 38, at end insert—
‘(6) The fact that the information which would be obtained under a warrant relates to the activities in the British Islands of a trade union is not, of itself, sufficient to establish that the warrant is necessary on grounds falling within this section.”
This amendment restricts the application of warrants in relation to trade union activity.
Amendment 238, page 14, line 39, leave out clause 19.
Amendment 208, in clause 21, page 17, line 4, leave out
“review the person’s conclusions as to the following matters”
and insert “determine”.
Amendment 209, page 17, line 10, leave out subsection (2).
Government manuscript amendment 497.
Amendment 265, page 17, line 10, leave out from “must” to end of line 11, and insert
“subject a person’s decision to issue a warrant under this Chapter to close scrutiny to ensure that the objective in issuing a warrant is sufficiently important to justify any limitation of a Convention right”.
An amendment to clarify the role of judicial commissioners. This amendment is an alternative to amendments 208 and 209 (which are a package).
Government manuscript amendment 498.
Amendment 314, in clause 24, page 18, line 39, leave out “Secretary of State” and insert “Judicial Commissioner”.
See amendment 316.
Amendment 315, page 18, line 41, leave out subsection (b) and insert—
“(b) the warrant involves a member of a relevant legislature.”
See amendment 316.
Government amendment 53.
Amendment 316, page 19, line 7, leave out subsection (2) and insert—
“(2) Further to the requirements set out elsewhere in this Part, the Judicial Commissioner may only issue a warrant if—
(a) there are reasonable grounds for believing that an indictable offence has been committed,
(b) there are reasonable grounds for believing that the material is likely to be of substantial value to the investigation in connection to the offence at (a),
(c) other proportionate methods of obtaining the material have been tried without success or have not been tried because it appeared that they were bound to fail,
(d) it is in the public interest having regard to the democratic interest in the confidentiality of correspondence with members of a relevant legislature.”
These amendments would ensure that applications for warrants to intercept the communications of elected politicians would be made to the Judicial Commissioner rather than to the Secretary of State via the Prime Minister. They would also set out additional requirements that the Judicial Commissioner must take into account before granting a warrant.
Amendment 1, page 19, line 8, at end insert
“and where the member is a member of the House of Commons he must also consult the Speaker of the House of Commons.”
This amendment would require the Secretary of State to consult the Speaker before deciding to issue a warrant that applied to an MP’s communications.
Amendment 137, page 19, line 8, after “Minister” insert
“and give sufficient notice to the relevant Presiding Officer of the relevant legislature to enable the relevant Presiding Officer to be heard at the hearing before the Judicial Commissioner.”
Amendment 138, page 19, line 14, at end insert—
“(4) In this section “the relevant Presiding Officer” means—
(a) the Speaker of the House of Commons,
(b) the Lord Speaker of the House of Lords,
(c) the Presiding Officer of the Scottish Parliament,
(d) the Presiding Officer of the National Assembly for Wales,
(e) the Speaker of the Northern Ireland Assembly,
(f) the President of the European Parliament.”
This amendment adds the safeguard of giving the Speaker, or other Presiding Officer, of the relevant legislature, sufficient notice before the Secretary of State decides whether to issue a warrant for targeted interception or examination of members’ communications, to enable the Speaker or Presiding Officer to be heard at the hearing before the Judicial Commissioner.
Amendment 139, in clause 25, page 19, line 16, leave out subsections (1) to (3).
This amendment removes the power to apply for a warrant the purpose of which is to authorise the interception, or selection for examination, of items subject to legal privilege.
Amendment 140, page 19, line 44, leave out subsection (4)(c).
See amendment 141.
Amendment 141, page 20, line 7, after “considers” insert—
“(a) that there are exceptional and compelling circumstances that make it necessary to authorise the interception, or (in the case of a targeted examination warrant) the selection for examination, of items subject to legal privilege, and
(b) ”.
These amendments introduce a threshold test for the interception or examination of communications likely to include items subject to legal privilege, reflecting the strong presumption against interference with lawyer-client confidentiality.
Amendment 307, in clause 27, page 21, line 7, leave out “or organisation”.
See amendment 267.
Amendment 308, page 21, line 8, leave out “or organisation”.
See amendment 267.
Amendment 309, page 21, line 13, leave out
“or describe as many of those persons as is reasonably practicable to name or describe”
and insert
“or specifically identify all of those persons using unique identifiers.”
See amendment 267.
Amendment 310, page 21, line 15, leave out “or organisation”.
See amendment 267.
Amendment 311, page 21, line 19, leave out
“or describe as many of those persons or organisations or as many of those sets of premises, as it is reasonably practicable to name or describe”
and insert
“all of those persons or sets of premises.”
See amendment 267.
Amendment 19, in clause 29, page 22, line 25, leave out
“before the end of the relevant”
and insert “during the renewal”.
See amendment 20.
Amendment 20, page 23, line 4, at end insert—
“(4A) ‘The renewal period’ means—
(a) in the case of an urgent warrant which has not been renewed, the relevant period;
(b) in any other case, the period of 30 days ending with the relevant period.”
On behalf of the Intelligence and Security Committee of Parliament, to prohibit the possibility of a warrant being renewed immediately. Clauses 28 and 29 would currently theoretically allow for warrants of 12 months duration rather than the intended six.
Amendment 21, page 23, line 16, at end insert—
“(8A) In this section ‘urgent warrant’ has the same meaning as in section 28.”
See amendment 20.
Amendment 147, page 23, line 19, leave out clause 30.
Government amendments 54 to 57.
Amendment 142, in clause 30, page 24, line 45, at end insert—
“(10A) Section 21 (Approval of warrants by Judicial Commissioners) applies in relation to a decision to make a major modification of a warrant by adding a name or description as mentioned in subsection (2)(a) as it applies in relation to a decision to issue a warrant; and accordingly where section 21 applies a Judicial Commissioner must approve the modification.”
This amendment seeks to ensure that major modifications of warrants require judicial approval.
Government amendment 58.
Amendment 148, page 25, line 22, leave out clause 31.
Government amendments 59 to 73.
Amendment 317, page 34, line 21, leave out clause 44.
This amendment would delete a Clause which permits the creation of additional interception powers immigration detention facilities.
Amendment 15, in clause 45, page 34, line 42, leave out “C” and insert “D”.
Consequential upon amendment 16.
Amendment 16, page 35, line 7, at end insert—
“(3A) Condition C is that the interception is carried out for the purpose of obtaining information about the communications of an individual who, both the interceptor and the person making the request have reasonable grounds for believing, is outside the United Kingdom.”
On behalf of the Intelligence and Security Committee of Parliament, to reinstate the current safeguard in RIPA that the person being intercepted must be outside the UK.
Amendment 17, page 35, line 8, leave out “C” and insert “D”.
Consequential upon amendment 16.
Government amendments 75 to 77.
Amendment 299, in clause 51, page 41, line 18, at end insert—
“(4) In proceedings against any person for an offence under this section in respect of any disclosure, it is a defence for the person to show that the disclosure was in the public interest.”
An amendment to introduce a public interest defence for interception disclosures.
Government amendment 74.
Government new clause 11—Persons who may make modifications under section 104.
Government new clause 12—Further provision about modifications under section 104.
Government new clause 13—Notification of modifications.
New clause 23—Members of Parliament—
“(1) This section applies where—
(a) an application is made to the Judicial Commissioner for a targeted equipment interference warrant, and
(b) the warrant relates to a member of a relevant legislature.
(2) This section also applies where—
(a) an application is made to the Judicial Commissioner for a targeted examination warrant, and
(b) the warrant relates to a member of a relevant legislature.
(3) Where any conduct under this Part is likely to cover material described above, the application must contain—
(a) a statement that the conduct will cover or is likely to cover such material,
(b) An assessment of how likely it is that the material is likely to cover such material.
(4) Further to the requirements set out elsewhere in this part, the Judicial Commissioner may only issue a warrant if—
(a) there are reasonable grounds for believing that an indictable offence has been committed, and
(b) there are reasonable grounds for believing that the material is likely to be of substantial value to the investigation in connection to the offence at (a), and
(c) other proportionate methods of obtaining the material have been tried without success or have not been tried because they were assessed to be bound to fail, and
(d) it is in the public interest having regard to:
(i) the public interest in the protection of privacy and the integrity of personal data,
(ii) the public interest in the integrity of communications systems and computer networks, and,
(iii) the democratic interest in the confidentiality of correspondence with members of a relevant legislature.”
This new clause would ensure that applications for a targeted equipment interference warrant or targeted examination warrant in relation to Parliamentarians are granted on application only to a Judicial Commissioner, removing the role of Secretary of State and applies additional safeguards to the correspondence of parliamentarians when a warrant for hacking is sought.
New clause 24—Audit trail of equipment interference—
“Any conduct authorised under a warrant issued under this Part must be conducted in a verifiable manner, so as to produce a chronological record of documentary evidence detailing the sequence of activities (referred to hereafter as ‘the audit trail’).”
See amendment 387.
Amendment 178, in clause 90, page 68, line 24, leave out subsection (1)(b).
See amendment 186.
Amendment 133, page 68, line 26, after “activity” insert
“where each person is named or otherwise identified”.
See amendment 131.
Amendment 134, page 68, line 29, after “operation” insert
“where each person is named or otherwise identified”.
See amendment 131.
Amendment 179, page 68, line 31, leave out subsection (1)(e).
See amendment 186.
Amendment 180, page 68, line 33, leave out subsection (1)(f).
See amendment 186.
Amendment 181, page 68, line 35, leave out subsection (1)(g).
See amendment 186.
Amendment 182, page 68, line 38, leave out subsection (1)(h).
See amendment 186.
Amendment 187, page 68, line 40, at end insert—
“(1A) A targeted equipment interference warrant may only be issued in relation to any of the matters that fall under subsection (1) if the persons, equipment, or location to which the warrant relates are named or specifically identified using a unique identifier.”
This amendment would ensure that all targets of hacking are properly named or otherwise identified.
Amendment 352, page 68, line 44, leave out paragraph (b).
See amendment 357.
Amendment 135, page 68, line 45, after “activity” insert
“where each person is named or otherwise identified”.
See amendment 131.
Amendment 136, page 68, line 47, after “operation” insert
“where each person is named or otherwise identified”.
See amendment 131.
Amendment 353, page 69, line 1, leave out paragraph (d).
See amendment 357.
Amendment 354, page 69, line 3, leave out paragraph (e).
See amendment 357.
Amendment 188, page 69, line 4, at end insert—
“(2A) A targeted examination warrant may only be issued in relation to any of the matters that fall under subsection (2) if the persons, equipment, or location to which the warrant relates are named or specifically identified using a unique identifier.”
This amendment would ensure that all targets of hacking are properly named or specifically identified.
Amendment 239, in clause 91, page 69, line 9, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 240, page 69, line 11, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 241, page 69, line 14, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 242, page 69, line 17, leave out subsection (3)(d).
Amendment 358, page 69, line 17, leave out paragraph (d) and insert—
“(d) the Judicial Commissioner has reasonable grounds for believing that the material sought is likely to be of substantial value to the investigation or operation to which the warrant relates.”
See amendment 361.
Amendment 243, page 69, line 20, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 244, page 69, line 22, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 245, page 69, line 24, leave out “and”.
Amendment 246, page 69, line 25, leave out subsection (2)(b).
Amendment 247, page 69, line 31, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 248, page 69, line 33, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 249, page 69, line 35, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 250, page 69, line 38, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 251, page 69, line 43, leave out subsection (3)(d).
Amendment 252, page 69, line 46, leave out subsection (4).
Amendment 359, page 70, line 8, after “crime” insert
“where there is reasonable suspicion that a serious criminal offence has been or is likely to be committed”.
See amendment 361.
Amendment 360, page 70, line 11, at end insert—
‘(5A) A warrant may be considered necessary only where there is a reasonable suspicion that a serious criminal offence has been or is likely to be committed in relation to the grounds falling within this section.”
See amendment 361.
Amendment 361, page 70, line 25, at end insert—
“(10) A warrant may only authorise targeted equipment interference or targeted examination as far as the conduct authorised relates—
(a) to the offence as specified under (5)(b), or
(b) to some other indictable offence which is connected with or similar to the offence as specified under (5)(b)”.
These amendments would require that there is reasonable suspicion of serious crime for a warrant authorising equipment interference to be issued. These amendments would introduce a requirement that warrants are only granted where there are reasonable grounds for believing material to be obtained will be of substantial value to the investigation or operation; the requirement of a threshold of reasonable suspicion that a serious criminal offence has been committed in order for a warrant to be granted; and the requirement that warrant applications contain this information. This amendment would require that a warrant only authorises conduct in relation to the offence for which the warrant was sought, or other similar offences.
Amendment 258, page 70, line 26, leave out Clause 92.
Amendment 253, in clause 93, page 71, line 21, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 254, page 71, line 23, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 255, page 71, line 25, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 256, page 71, line 28, leave out “Secretary of State” and insert “Judicial Commissioners”.
Amendment 257, page 71, line 31, leave out subsection (1)(d).
Amendment 382, page 71, line 31, leave out subsection (d) and insert—
“(d) the Judicial Commissioner has reasonable grounds for believing that the material sought is likely to be of substantial value to the investigation or operation to which the warrant relates.”
See amendment 362.
Amendment 362, page 71, line 35, leave out from “include” to the end of line 36 and insert—
“(a) the requirement that other proportionate methods of obtaining the material have been tried without success or have not been tried because they were assessed to be bound to fail, and
(b) the requirement that a “Cyber-Security Impact Assessment” has been conducted by the Investigatory Powers Commissioner’s technical advisors with regard to the specific equipment interference proposed, accounting for—
(i) the risk of collateral interference and intrusion, and
(ii) the risk to the integrity of communications systems and computer networks, and
the risk to public cybersecurity.”
These amendments require a technical assessment of proportionality accounting for the risks of the conduct proposed. These requirements would apply when applications from the intelligence services, the Chief of Defence Intelligence and law enforcement are considered. These amendments would introduce a requirement that warrants are only granted where there are reasonable grounds for believing material to be obtained will be of substantial value to the investigation or operation; the requirement of a threshold of reasonable suspicion that a serious criminal offence has been committed in order for a warrant to be granted; and the requirement that warrant applications contain this information.
Amendment 363, page 71, line 40, leave out Clause 94.
Government amendments 88 to 91.
Amendment 259, page 72, line 18, leave out Clause 95.
Amendment 364, in clause 96, page 72, line 37, leave out
“law enforcement chief described in Part 1 or 2 of the table in Schedule 6”
and insert “Judicial Commissioner”.
See amendment 383.
Amendment 365, page 72, line 38, leave out
“person who is an appropriate law enforcement officer in relation to the chief”
and insert
“law enforcement chief described in Part 1 of the table in Schedule 6”.
See amendment 383.
Amendment 366, page 72, line 41, leave out “law enforcement chief” and insert “Judicial Commissioner”.
See amendment 383.
Amendment 367, page 73, line 1, leave out “law enforcement chief” and insert “Judicial Commissioner”.
See amendment 383.
Amendment 368, page 73, line 4, leave out “law enforcement chief” and insert “Judicial Commissioner”.
See amendment 383.
Amendment 369, page 73, line 7, leave out paragraph (d).
See amendment 383.
Amendment 370, page 73, line 10, leave out
“law enforcement chief described in Part 1 of the table in Schedule 6”
and insert “Judicial Commissioner”.
See amendment 383.
Amendment 371, page 73, line 11, leave out
“person who is an appropriate law enforcement officer in relation to the chief”
and insert
“law enforcement chief described in Part 1 of the table in Schedule 6”
See amendment 383.
Amendment 372, page 73, line 13, leave out “law enforcement chief” and insert “Judicial Commissioner”.
See amendment 383.
Amendment 373, page 73, line 17, leave out “law enforcement chief” and insert “Judicial Commissioner”.
See amendment 383.
Amendment 374, page 73, line 20, leave out “law enforcement chief” and insert “Judicial Commissioner”.
See amendment 383.
Amendment 375, page 73, line 23, leave out paragraph (d).
See amendment 383.
Amendment 376, page 73, line 26, leave out subsection (3).
See amendment 383.
Amendment 261, page 73, line 26, leave out “law enforcement chief” and insert “Judicial Commissioner”.
Amendment 377, page 73, line 32, leave out paragraphs (b) and (c).
Amendment 378, page 73, line 38, after “Where” insert
“an application for an equipment interference warrant is made by a law enforcement chief and”.
See amendment 383.
Amendment 379, page 73, line 42, leave out subsections (6) to (10).
See amendment 383.
Government amendment 92.
Amendment 380, page 74, line 15, leave out
“whether what is sought to be achieved by the warrant could reasonably be achieved by other means”
and insert—
“(a) the requirement that other proportionate methods of obtaining the material have been tried without success or have not been tried because they were assessed to be bound to fail, and
(b) the requirement that a “Cyber-Security Impact Assessment” has been conducted by the Investigatory Powers Commissioner’s technical advisors with regard to the specific equipment interference proposed, accounting for—
(i) the risk of collateral interference and intrusion, and
(ii) the risk to the integrity of communications systems and computer networks, and
the risk to public cybersecurity.”
See amendment 383.
Amendment 381, in clause 96, page 74, line 18, leave out subsections (12) and (13)
See amendment 383.
Amendment 210, in clause 97, page 74, line 40, leave out
“review the person’s conclusions as to the following matters”
and insert “determine”.
Amendment 211, page 75, line 1, leave out subsection (2).
Amendment 270, page 75, line 1, leave out from “must” to end of line 2, and insert
“subject a person’s decision to issue a warrant under this Chapter to close scrutiny to ensure that the objective in issuing a warrant is sufficiently important to justify any limitation of a Convention right”.
An amendment to clarify the role of judicial commissioners. This amendment is an alternative to amendments 210 and 211 (which are a package).
Amendment 183, in clause 101, page 78, leave out lines 21 to 27.
See amendment 186.
Amendment 184, page 79, leave out lines 3 to 7.
See amendment 186.
Amendment 185, page 79, leave out lines 8 to 12.
See amendment 186.
Amendment 186, page 79, leave out lines 13 to 18.
These amendments refine the matters to which targeted equipment interference warrants may relate by removing vague and overly broad categories including equipment interference for training purposes.
Amendment 386, page 79, line 21, leave out paragraph (b) and insert—
“(b) precisely and explicitly the method and extent of the proposed intrusion and measures taken to minimise access to irrelevant and immaterial information, and
(c) in a separate “Cyber-Security Impact Assessment”,
(i) the risk of collateral interference and intrusion, and
(ii) the risk to the integrity of communications systems and computer networks, and
(iii) the risk to public cybersecurity, and how those risks and damage will be eliminated or corrected.”
See amendment 387.
Amendment 387, page 79, line 23, at end insert—
“(c) the basis for the suspicion that the target is connected to a serious crime or a specific threat to national security, and
(d) in declaration with supporting evidence,
(i) the high probability that evidence of the serious crime or specific threat to national security will be obtained by the operation authorised, and
(ii) how all less intrusive methods of obtaining the information sought have been exhausted or would be futile.”
These amendments require a technical assessment of proportionality accounting for the risks of the conduct proposed. These requirements would apply when applications from the intelligence services, the Chief of Defence Intelligence and law enforcement are considered. They would introduce a requirement that all equipment interference produces a verifiable audit trail. These amendments would introduce a requirement that warrants are only granted where there are reasonable grounds for believing material to be obtained will be of substantial value to the investigation or operation; the requirement of a threshold of reasonable suspicion that a serious criminal offence has been committed in order for a warrant to be granted; and the requirement that warrant applications contain this information.
Amendment 355, page 79, leave out lines 31 to 36.
See amendment 357.
Amendment 356, page 79, leave out lines 37 to 44.
See amendment 357.
Amendment 357, page 80, leave out lines 8 to 12.
These amendments would ensure that all targets of hacking are properly named or specifically identified. Warrants may still be granted where the equipment in question belongs to or is in the possession of an individual or more than one person where the warrant is for the purpose of a single investigation or operation; or for equipment in a particular location or equipment in more than one location where for the purpose of a single investigation or operation.
Amendment 388, in clause 102, page 80, line 23, leave out “6” and insert “1”.
This specifies that hacking warrants may only last for one month.
Government amendments 93 to 96.
Amendment 149, page 82, line 1, leave out clause 104.
Government amendments 97 to 100.
Amendment 150, page 83, line 36, leave out clause 105.
Government amendments 101 to 113.
Amendment 151, page 84, line 34, leave out clause 106.
Government amendments 114 to 120.
Amendment 152, page 85, line 40, leave out clause 107.
Amendment 173, page 87, line 26, leave out clause 109.
Amendment 174, page 88, line 7, leave out clause 110.
Government amendments 121 and 122.
Amendment 175, page 88, line 35, leave out clause 111.
Amendment 176, in clause 114, page 92, line 6, leave out subsection (3)(e).
Amendment 177, page 92, line 8, leave out subsection (3)(f).
Government amendment 123.
Amendment 302, in clause 116, page 93, line 39, at end insert—
‘(4) In proceedings against any person for an offence under this section in respect of any disclosure, it is a defence for the person to show that the disclosure was in the public interest.”
An amendment to introduce a public interest defence for equipment interference disclosures.
Government amendment 124.
Amendment 383, in schedule 6, page 214, line 7, leave out part 2.
These amendments remove the power for law enforcement chiefs to issue equipment interference warrants on application from law enforcement officers and replace it with the power for Judicial Commissioners to issue equipment interference warrants on application from law enforcement chiefs. They also remove the power to issue equipment interference warrants from other officers listed in Part 2, Schedule 6. These amendments require a technical assessment of proportionality accounting for the risks of the conduct proposed. These requirements would apply when applications from the intelligence services, the Chief of Defence Intelligence and law enforcement are considered.
Government amendments 125 and 126.
Government new clause 10.
Amendment 488, page 167, line 9, leave out clause 216.
This amendment would remove the provision for national security notices.
Government amendment 78.
Amendment 196, in clause 216, page 167, line 14, after “State”, insert
“and Investigatory Powers Commissioner consider”.
See amendment 205.
Amendment 197, page 167, line 32, after “State”, insert
“and Investigatory Powers Commissioner”.
See amendment 205.
Government amendment 79.
Amendment 489, page 167, line 35, leave out clause 217.
This amendment would remove the provision for technical capability notices.
Government amendments 80 and 81.
Amendment 198, page 168, line 9 [Clause 217], after “State”, insert “and Investigatory Powers Commissioner consider”.
See amendment 205.
Government amendment 82.
Amendment 199, page 168, line 27 [Clause 217], after “State”, insert “and Investigatory Powers Commissioner”.
See amendment 205.
Government amendment 83.
Amendment 200, page 168, line 36 [Clause 217], after “State”, insert “and Investigatory Powers Commissioner”.
See amendment 205.
Amendment 201, page 168, line 40 [Clause 217], after “State”, insert “and Investigatory Powers Commissioner”.
See amendment 205.
Government amendments 84 and 85.
Amendment 490, page 169, line 2, leave out clause 218.
Consequential amendment following deletion of national security and technical capability notices.
Amendment 202, page 169, line 6 [Clause 218], after “State”, insert “and Investigatory Powers Commissioner”.
See amendment 205.
Amendment 203, page 169, line 8 [Clause 218], after “State”, insert “and Investigatory Powers Commissioner”.
See amendment 205.
Government amendment 86.
Amendment 204, page 169, line 20 [Clause 218], after “State”, insert “and Investigatory Powers Commissioner”.
See amendment 205.
Amendment 205, page 169, line 34 [Clause 218], after “State”, insert “and Investigatory Powers Commissioner”.
National Security and Technical Capability Notices should be subject to a double lock authorisation by the Secretary of State and the Investigatory Powers Commissioner.
Government amendment 87.
Amendment 491, page 170, line 10, leave out clause 219.
Consequential amendment following deletion of national security and technical capability notices.
Amendment 492, page 170, line 38, leave out clause 220.
Consequential amendment following deletion of national security and technical capability notices.
The Solicitor General
It is a pleasure to deal with the second group of amendments. It is a large group, which some hon. Members have described to me as “unprecedented”. I would not be so bold as to say that, having served a mere six years in this place. I concede, however, that the group is considerable. That perhaps reflects the huge and legitimate interest of Members of all parties in these particular parts of the Bill.
Parts 2 and 5 of the Bill were debated at length in Public Bill Committee. The Government have listened to what was said in those debates and we have brought back a number of amendments in response. These changes will strengthen protections for parliamentarians; enhance the safeguards for targeted thematic warrants; and provide greater assurances in respect of the obligations that might be placed on communications service providers.
Before I come on to the detail of the Government amendments, let me say a few words about one of the most important issues that we will discuss in this group: the authorisation of warrants.
When the Government published the draft Bill in November last year, my right hon. Friend the Home Secretary announced the intention that warrants for the most sensitive powers available to the security and intelligence agencies would be authorised by the Secretary of State and approved by a senior independent judge. This would maintain democratic accountability and introduce a new element of judicial independence into the warrant authorising process. This double lock represents the most significant change in our lifetimes to the way in which the security and intelligence agencies exercise their vital powers. This is ground-breaking, innovative and important in striking a balance between the public interest in protecting our citizens and the interests of privacy. There is a range of views in the House on the question of authorisations, and I am sure that we will have a productive and weighty debate on these matters this evening.
The amendments tabled by the hon. and learned Member for Holborn and St Pancras (Keir Starmer) seek to remove the reference to judicial review principles. The House will be aware that the Joint Committee that considered the draft Bill said that it was “satisfied” with the wording of the Bill and that judicial review principles would
“afford the Judicial Commissioner a degree of flexibility.”
That flexibility is important. It provides that judicial commissioners can undertake detailed scrutiny of decisions where appropriate, but it does not oblige judges to undertake forensic scrutiny of even the most straightforward warrants, because to do so would be unnecessary and would threaten the operational agility of the security and intelligence agencies.
In our debate on the first group of amendments, we had a mini-debate—we might have strayed slightly off piste—on the language that should be used in relation to the scrutiny that we want the judicial commissioners to deploy when considering their part in the double-lock mechanism. However, I believe that the manuscript amendment provides precisely the assurance that Opposition Members were seeking in Committee and in subsequent correspondence, and I am grateful to the hon. and learned Member for Holborn and St Pancras and other Opposition Members for agreeing to it. I am also grateful to the right hon. Member for Leigh (Andy Burnham) for his involvement in these important matters. I believe that we now have an amendment that will satisfy the concerns of all hon. Members and provide the robust safeguard that we were all looking for. The wording that the parliamentary draftsmen have come up with ties in the privacy provision that we debated in the last group of amendments and puts this matter right at the heart of the Bill. We now have a robust double lock that will maintain the important distinction between the Executive and the judiciary. As I have said, this is truly ground-breaking.
I shall speak to the other Government amendments as quickly as I can, to ensure that other hon. Members can be accommodated in the debate. New clauses 9 and 13 will deliver on our commitment to strengthen the safeguards around so-called thematic warrants—that is, those targeted warrants that apply to a group of suspects rather than to an individual. They will introduce a new requirement that major modifications to warrants—adding the name of a gang member, for example—must be notified to a judicial commissioner as well as to the Secretary of State.
Amendments 97 and 54 will strictly limit the operation of modifications, making it clear that a warrant targeted at a single suspect cannot be modified to expand its scope to target several suspects. This builds on the assurances that I gave in Committee, and the provision will now be on the face of the Bill, should the amendments be accepted. New clauses 8 and 12 make it clear that modifications that engage the Wilson doctrine or legal professional privilege should be subject to the full double-lock authorisation.
Robert Neill (Bromley and Chislehurst) (Con)
I am grateful to the Solicitor General for recognising the importance not only of the Wilson doctrine but of legal professional privilege. Would he accept that Government new clause 5 ought to be capable of embracing legal professional privilege within the overarching public interest in protecting privacy? Will he also continue to work with the Bar Council and the Law Society to ensure that we monitor the practical application of the protection of legal privilege in these matters?
The Solicitor General
I am extremely grateful to the Chairman of the Justice Committee, who speaks with knowledge and experience on such matters. He will be glad to know that Bar Council representatives, whom I recently met, have kindly undertaken to come up with further proposals by which the issues that took up so much time in Committee might be resolved. I will be meeting representatives of the Law Society this very week. It is perhaps a little unfortunate that those particular proposals were not crystallised prior to today’s debate, but there will of course be more time. If clear proposals come forward—I am sure that they will—they can be subject to full, proper scrutiny in the other place.
Mr David Davis
Bluntly, I ask my hon. and learned Friend to ensure that proposals come forward whether or not the Law Society comes up with any. The erosion of legal professional privilege without any recourse to this House is the single biggest erosion of liberty in this country over the past decade and a half. If the Bill is to meet its requirements, it is vital that such reforms are found.
The Solicitor General
My right hon. Friend speaks with passion and sincere conviction on such matters. He will be glad to know that, unlike in RIPA 2000, legal professional privilege is on the face of the Bill, which is a significant improvement over previous legislation. I reassure him that the provisions in the Bill that already embrace the importance of legal professional privilege have in large measure been warmly welcomed. The question is one of getting the detail right with particular regard to those occurrences, albeit rare, when the iniquity exemption—when people are pursuing a crime, which is not covered by legal professional privilege—applies and which might come under the purview of any warrantry that is sought under the Bill’s provisions.
However, I am certainly not leaving the proposals to other agencies. I am working as hard as I can with expert bodies that have great interest and knowledge and, like my right hon. Friend, recognise the overwhelming public importance of the preservation of legal professional privilege. I am glad to say that that dialogue will continue and will allow for meaningful scrutiny and debate in the other place.
Turning to the Wilson doctrine, clause 24 of the Bill currently requires the Prime Minister to be consulted before a targeted interception or targeted examination warrant can be issued in respect of such communications. Amendments 53 and 90 will strengthen that by making it clear that the Prime Minister must agree to the interception of the parliamentarian’s communications, rather than simply be consulted.
Sir Edward Leigh (Gainsborough) (Con)
Has my hon. and learned Friend noticed my amendment 1, in which I introduce the extra safeguard that the Speaker should be consulted?
The Solicitor General
My hon. Friend has tabled that amendment in the spirit of his speech on Second Reading, which referred to the role of the Speaker. I look forward to hearing any argument that he pursues on this matter. While I can see the merit in seeking to protect the privileges of parliamentarians through the office of the Speaker, my concern is that involving the Speaker in approving a particular warrantry process or not puts us at risk of confusing Executive action with the roles of this place and of the Speaker in terms of the legislature.
The Prime Minister will be accountable to hon. Members for any decision that he or she may take on warrantry through the normal process of questions, statements or being summoned to this House following an urgent question. The procedure in relation to any decision that the Speaker might make is more difficult—the mechanism might be a point of order. However, I am unsure whether that sort of challenge to the Chair would sit well with the role of the Speaker and the position of parliamentarians. There are difficulties in involving the Speaker.
Mr David Davis
Unfortunately, I am afraid that I can give my hon. and learned Friend evidence of his account of accountability not working. When the case of the hon. Member for Brighton, Pavilion (Caroline Lucas), who is a past, and no doubt future, leader of the Green party, went to the Investigatory Powers Tribunal, the Government lawyer’s stance was that it was not a legally binding constraint on the agencies. When I put that point to the Prime Minister, he was unable to answer. It is normally the case with the Wilson doctrine that the answer comes many years later, so an argument about accountability does not stand up here.
The Solicitor General
With respect to my right hon. Friend, I think it does, because we are putting in the Bill the Prime Minister’s role in approving the warrant; what we have for the first time is a very important statutory protection. Again, let us not forget the progress we have made in getting to the position we are in today. A few years ago, some of these conventions and operations were not even avowed, although that is not the case with the Wilson doctrine. Let us pause for a moment to remember what that doctrine is all about, which is making sure that hon. Members can carry out their public functions as office holders in a free and proper way, subject to the same laws as everybody else in this country—equality before the law applies to Members of this place as much as it does to other members of the public. I am sure that debate will be developed as we hear from speakers on this group.
On technical capability notices and national security notices, we have been very clear throughout this process that we will work closely with industry to ensure that the Bill provides the strongest protections to those who may be subject to obligations under this legislation. In Committee, we heard concerns that these notices were not subject to the same strict safeguards as the authorisations of warrants. We have listened to those concerns and responded with new clause 10, which applies the full double lock to the issue of notices under part 9 of the Bill. Following further engagement with industry, we have taken steps to address further concerns, and so amendment 86 will make it clear that national security notices cannot require companies to remove encryption; amendment 87 makes it clear that national security notices will not subject companies to conflicting obligations in law; and amendments 45, 70 to 73 and 122 make it clear that warrants must be served in an appropriate manner to a person who is capable of giving effect to it. That deals with the problems that companies with an international dimension have if these things are served to an inappropriate employee—somebody who does not have the power to deal with the warrant.
We have also tabled a number of minor and technical amendments, many of which respond directly to issues raised by the Opposition and by the SNP in Committee. Others, such as amendments 92 and 126, provide important clarification on issues relating to the Independent Police Complaints Commission and the Police Investigations and Review Commissioner in Scotland.
These important changes reflect this Government’s willingness to listen to suggestions that will improve this vital piece of legislation. My right hon. Friend the Minister for Security will respond to other amendments when winding up. In the meantime, I look forward to another informed and wide-ranging debate.
Andy Burnham (Leigh) (Lab)
Labour has taken a responsible and pragmatic approach to this Bill. We have supported the principle of a modern legal framework governing the use of investigatory powers, recognising that as communications have migrated online, the police and security services have lost capability, but equally, we know that much stronger safeguards are needed in law to protect individuals from the abuse of state power. That is the balance we have been trying to achieve.
Following Second Reading, I wrote to the Home Secretary setting out Labour’s seven substantial areas of concern, and I said that unless there was significant movement from the Government in those areas, we would be unable to support moves to put this Bill on the statute book by the December deadline. The group of amendments before us covers three of those seven issues: the double-lock process and the test to be applied by judicial commissioners; the protections for sensitive professions; and the position of trade unions with respect to this Bill. I will discuss each of those issues in turn, but I start by raising an issue that emerged in Committee.
My hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer), the shadow Immigration Minister, identified a potential loophole that allowed warrants to be modified after initial approval without proper scrutiny by judicial commissioners, thereby undermining the double lock. The Government have part-closed this loophole for sensitive professions, but we feel they need to go further and close it for everyone, to ensure that people cannot be added to thematic warrants by modification without the involvement of a judge. I hope that Ministers will listen to that concern and reassure us that they are open to further discussion.
I know that the judicial review test and the double lock have been discussed today, so I will not detain the House long. As Members on both sides of the House know, one of our earliest demands was that there should be independent judicial oversight of the approval of warrants, and we were pleased when the Home Secretary conceded that point some months ago. Labour has always believed that the judicial commissioner must be able to consider the substance of the Home Secretary’s decision to issue a warrant, not just the process. Put simply, it must be a double lock, not a rubber stamp.
My hon. and learned Friend has done painstaking work on this issue in Committee and outside, and we thank in particular the Minister for Security for his willingness to listen to our concerns and for the manuscript amendment tabled today by the Home Secretary. It accepts the spirit of the proposals we tabled in Committee by ensuring that judicial commissioners will have to take into account their duties under the overarching privacy clause when reviewing the Home Secretary’s decision to grant a warrant. Judicial commissioners’ decisions must therefore be taken in line with human rights concerns. They must consider whether the same result could have been achieved by other means, and whether public interest concerns are met. In short, it will require much closer scrutiny of the initial decision of the Home Secretary and, significantly, bring greater clarity than the Government’s initial judicial review test would have done. We believe that that does indeed amount to a real double lock and, I have to say, a real victory for the Opposition. I confirm that we will support the Government’s amendment tonight.
When we talk about protections for sensitive professions —lawyers, journalists and Members of Parliament—it might sound to anyone watching this debate as though we in this House were once again seeking special status for ourselves in the eyes of the law. That is why it is important that I emphasise that these are not special privileges or protections for Members of Parliament, but protections for members of the public. If someone seeks the help of an MP at a constituency advice surgery or of a lawyer, or blows the whistle to a journalist, they should be able to do so with a high degree of confidence that the conversation is confidential.
Robert Neill
Does the right hon. Gentleman accept that a point we need to make is that the privilege is not that of the lawyer, but that of the client? It is therefore entirely proper for us to emphasise that particular care should be taken when dealing with privilege, which is attracted to the client. It is not ourselves as lawyers or as Members of Parliament that we put in a privileged position; it is the person who comes to seek advice who has to have protection.
Andy Burnham
The hon. Gentleman makes a tremendously important point very well. This is about a basic protection for the public—a safeguard for the public. Also, on MPs and the Wilson doctrine, it is also a protection for our democracy that people can seek the advice of a Member of Parliament without fearing that someone else is listening. The hon. Gentleman is spot on, but I have to say that we do not feel that the Bill as it stands provides sufficient reassurance to the public that that confidentiality will be mostly respected. To be fair, the Government have moved on this point, but we believe that further work is needed, and that they need to continue to talk to the professional representative bodies. I will take each group in turn, starting with MPs.
We believe that the Bill is the right place to codify the thrust of the Wilson doctrine, but in our letter to the Home Secretary we expressed concern that the Bill required only that the Prime Minister be consulted before investigatory powers were used against MPs. We argued that the Prime Minister should personally be asked to approve any such action, and we are pleased that the Government have accepted this. I note that the Joint Committee on Human Rights, chaired by my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman), has proposed a further strengthening of the doctrine and a role for the Speaker, who should be notified and able to challenge a decision on intercepting the communications of a Member of Parliament. We have not yet taken a view on that proposal. It is right to debate it as the Bill progresses to the Lords, and perhaps we can return to it later.
Joanna Cherry
Bearing in mind that the protection is for parliamentarians across these islands, does the right hon. Gentleman agree that the Presiding Officers in the Scottish Parliament, the Northern Ireland Assembly and the Welsh Assembly would have to be involved, not just the Speaker in this House?
Andy Burnham
That is a fair point, and the amendment tabled by my right hon. and learned Friend the Member for Camberwell and Peckham seeks to ensure that. Perhaps this is an issue that the Government need to think about. Of course the provisions should apply to Members of the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly. The point made by the hon. and learned Member for Edinburgh South West (Joanna Cherry) should be accepted.
On journalists and journalistic sources, we welcome the fact that the Government have moved to put protections originally in the codes underpinning the Bill into the measure itself. We note, however, that the National Union of Journalists believes that wider protections are still needed, and the Government should continue to work with it to get that right.
Finally, on legal privilege there has been the least progress of all. Serious concerns have been expressed by the Bar Council and the Law Society about the fact that the provisions would weaken privacy protections currently enjoyed by lawyers, but those concerns are not adequately reflected in the Bill. It is disappointing that Ministers have yet to meet the legal bodies. [Interruption.] I did not quite hear what the Solicitor General said. I am happy to give way if he wants to clarify the position.
The Solicitor General
I have met the Bar Council, and I am meeting the Law Society on Wednesday, so I can assure him that there is engagement.
Andy Burnham
My mistake; I did hear the Solicitor General say that he was meeting those bodies this week. It is a little disappointing—I am not making a petty point—as we wish we could have made more progress before this debate. As the right hon. Member for Haltemprice and Howden (Mr Davis) said, this is extremely important, and our debates would be improved if there had been more progress in this area. Nevertheless, it is clear that this is firmly on the Solicitor General’s radar, and the excellent points made by the hon. Member for Bromley and Chislehurst (Robert Neill) show that there is concern in all parts of the House about moving further to get this right. In the absence of acceptable Government amendments, amendments 139 to 141 tabled by my right hon. and learned Friend the Member for Camberwell and Peckham are a step in the right direction. If amendments were forthcoming from the Government, we would certainly support them.
Mr David Davis
This point has just occurred to me, looking at the exchange of letters between Front-Bench spokespeople on bulk collection. What the right hon. Gentleman has been saying about privilege, whether legal, parliamentary or journalistic, applies only to targeted interception, but a great deal of bulk interception is shared with our allies, the National Security Agency, and there is no carve-out for any of the protections that he has discussed. I can think of circumstances in which lawyers might be targeted by the NSA because their clients are suspects—or, indeed, irritating Members of Parliament might be targeted; I am thinking of the right hon. Gentleman. In the discussions between the Front-Bench spokespeople, when the bulk collection inquiry is progressed, that should be picked up, so that the issue is dealt with.
Andy Burnham
I do not know whether that was a compliment, but I will take it as such. The right hon. Gentleman raises an important point. To be fair to the Government, there has been movement on thematic warrants: if an MP or a journalist was to be added to a thematic warrant, there would be a judicial oversight process. The right hon. Gentleman mentions taking that principle even further and relating it to bulk data. I think that David Anderson would need to consider how practically possible that would be, but the right hon. Gentleman’s point needs to be considered.
Labour amendment 262 relates to trade unions and would amend clause 18 to ensure, in statute, that undertaking legitimate trade union activities is never in future a reason for the security services or police using investigatory powers. In recent times, we have been shining a light on this country’s past and learning more about how we have been governed and policed. Revelations about Bloody Sunday, Hillsborough, phone hacking, child sexual exploitation and other matters have all in different ways shaken people’s faith in the institutions that are there to protect us. They raise profound questions about the relationship between the state and the individual. Confronted with those uncomfortable truths about abuses of power, this House needs to provide a proper response and legislate to prevent them in the future. We need to redress the balance in favour of ordinary people and away from the Executive.
Steve Rotheram (Liverpool, Walton) (Lab)
Will my right hon. Friend join me in paying tribute to Unite, the Union of Construction, Allied Trades and Technicians and the GMB, which fought a long campaign to raise the scandal of the illegal blacklisting and secret vetting of construction workers? Can he assure the House that such a gross injustice could not be perpetrated against innocent workers again, and that his amendment would provide an absolute guarantee that legitimate trade union activities would be excluded from monitoring by the security services and the police?
Andy Burnham
I will indeed pay tribute to Unite, GMB and UCATT, which, in the past couple of months, have reached out-of-court settlements on blacklisting—a major and historic victory on their part. I will come on to explain the prime concern behind the Opposition’s amendment, and the case that most justifies our bringing it forward.
In the past, the actions of some in senior positions in politics and in the police have unfairly tarnished the reputation of today’s services and today’s policemen and women. That is precisely why it is crucial that we continue to open up on the past. Transparency is the best way of preventing lingering suspicions about past conduct from contaminating trust in today’s services, and it will help us to create a modern legal framework that better protects our essential freedoms, human rights and privacy.
One such freedom essential to the health of our democracy is trade union activity. Historically, trade unions have played a crucial role in protecting ordinary people from the abuses of Governments and mighty corporations. It is that crucial role, and the freedom of every citizen in this land to benefit from that protection, that amendment 262 seeks to enshrine in law. There will be those who claim that it is unnecessary and the product of conspiracy theorists, but I have received confirmation from the security services that, in the past—under Governments of both colours, it has to be said—trade unions have indeed been monitored. In the cold war, there may well have been grounds for fears that British trade unions were being infiltrated by foreign powers trying to subvert our democracy. That helps to explain the wariness of many Labour Members about legislation of this kind. Outside the security services, it seems that some activity went way beyond that. There is clear evidence that such monitoring was used for unjustified political and commercial reasons, breaching privacy and basic human rights. I mentioned the case of the Shrewsbury 24 on Second Reading, and I remain of the view that that is an outstanding injustice that needs to be settled.
As my hon. Friend the Member for Liverpool, Walton (Steve Rotheram) anticipated, however, I want tonight to focus on the blacklisting of construction workers, which clearly illustrates the necessity of the amendment we have tabled. We have seen the settlement of claims, as I have mentioned, against companies such as Carillion, Balfour Beatty, Costain, Keir, Laing O’Rourke, Sir Robert McAlpine, Skanska UK and Vinci. It has now been proven that those companies subscribed to central lists of workers that contained information on their political views and trade union activities. Those lists were used to vet people and deny them work. That affected the livelihoods of hundreds of people, and it was an outrageous denial of their basic human rights.
By seeking an out-of-court settlement, it would seem that the companies concerned are trying to limit reputational damage, but I do not think that the matter can be allowed to rest there. We need to understand how covertly gained police information came into the hands of a shady organisation called the Consulting Association, which compiled and managed the blacklist.
Mr Alistair Carmichael
Does the right hon. Gentleman agree that the remit of the Pitchford inquiry, which has been set up to look into the use of undercover policing, really needs to be extended to cover what went on in Scotland and other parts of the United Kingdom or we will never get the full truth of this?
Andy Burnham
That is certainly one way of addressing the concerns that I am putting on record tonight, but another would be to have a separate inquiry into blacklisting per se. Not only was it outrageous, but it is still largely not known about. Most people outside trade union circles do not know that it happened. That is why, by one means or another, there needs to be a process of inquiry about it.
We would not know about the practice were it not for the outstanding work of the Blacklist Support Group and individuals such as Dave Smith who have exposed how much of the information held on individuals appeared to emanate from police sources. For instance, the files hold detailed descriptions of the movements of a number of people at the June 1999 demonstration “Carnival Against Capital”. As a Guardian article by Dave Smith and Phil Chamberlain pointed out, it seems highly unlikely that that intelligence was the product of a site manager who just happened to be passing through London on that day.
The Blacklist Support Group referred the matter to the Independent Police Complaints Commission in 2012. I want to put on record what it found, because it is pretty shocking. Having looked into the concerns, the IPCC wrote in a letter to the Blacklist Support Group:
“The scoping also identified that it was likely that all Special Branches were involved in providing information about potential employees who were suspected of being involved in subversive activity.”
All special branches were likely to have given information that was used to compile the blacklist.
Steve Rotheram
May I expand on the point that my right hon. Friend is making? Perhaps some people outside the Chamber will not understand what subversive activities were. In those days, subversive activities included complaining about health and safety because a person was dying on a building site every single day. Does my right hon. Friend agree that that is hardly subversive activity?
Andy Burnham
My hon. Friend is absolutely right. Those were people who were trying to protect their workmates and colleagues. An individual who protested outside Fiddler’s Ferry power station near us in the north-west was trying to safeguard people’s safety at work, but they were subjected to this outrageous abuse of their rights.
Mr George Howarth
My right hon. Friend is making a very powerful case. I do not know whether he is aware of this, but when the issue first arose during the last Parliament, I took it up with the Metropolitan Police Commissioner to ask whether there was any involvement on the part of the Metropolitan police. I got a letter back not from the commissioner himself, but from a senior member of his staff, who now works for one of the agencies, flatly denying that there was any such involvement. Something was happening, as the excerpt my right hon. Friend has read out shows, yet even as recently as three or four years ago, the Metropolitan police utterly denied it.
Andy Burnham
I agree with my right hon. Friend. It is quite clear that “all Special Branches” provided information. There it is in the letter from the IPCC in 2013. I do not think that its pretty astounding confirmation has been properly followed up. As I said in response to the right hon. Member for Orkney and Shetland (Mr Carmichael), people have a right to know what information was passed by whom in the police service, who sanctioned the passing of that information to such organisations and the policy under which passing that information was justified.
This is yet another scandal from our country’s past, in which it seems that the establishment rode roughshod over the rights of ordinary people. I pay tribute to the Home Secretary for the courage she has shown in facing up to our past, but the evidence trail has not yet reached its end. This process must continue: we must continue to go wherever the evidence takes us. Such evidence is now taking us to blacklisting and, of course, to Orgreave and its aftermath. In my view, the case for inquiries into both is unanswerable. I again call on the Government to initiate those inquiries so that people can have the truth.
For tonight, we call on the Government to accept Labour’s amendment to provide protection in law for legitimate trade union activity. Had that provision been in place years ago, it could have prevented the abuses that we saw with the blacklisting of workers. If it could be agreed, such an historic move would give some recognition to the long and proud campaign for fairness in the eyes of the law that has been fought by trade unionists. It would also show a real willingness on the part of the Government to create a modern law that is as much about protecting the rights of the working person as it is about keeping us safe in the 21st century.
Sir Edward Leigh
I rise to speak to my amendment 1, which is, in clause 24, page 19, line 8, at the end to insert that where the subject of the snooping, frankly, is a Member of the House of Commons, that snooping must also involve a consultation with the Speaker of the House of Commons. The Member’s explanatory statement helpfully says:
“This amendment would require the Secretary of State to consult the Speaker before deciding to issue a warrant that applied to an MP’s communications.”
This is a small, but I believe important amendment. It is of course perfectly proper and pertinent that, as we all agree, the Secretary of State consults the Prime Minister before deciding to issue a targeted interception or examination warrant regarding an MP’s communication with a constituent or somebody else. We all understand that, and it is not controversial. However, the Prime Minister is the Queen’s chief Minister of Government and is, by its very nature, a political office holder. It goes without saying that we have complete confidence in the present Prime Minister that no such thing would happen, but we must not make permanent laws based on impermanent situations. Our conscientious Prime Minister, who I am sure is both aware of and respectful of parliamentary privilege, may be succeeded, somewhere down the line, by a man or woman who does not esteem the dearly won privileges of this House. They are not our privileges: they are not for us; they are for the protection of our democracy and of our constituents.
It may be that a future Prime Minister would be under intolerable pressure during a time of national crisis. It is not difficult to imagine that circumstances may come into play in which a future Prime Minister authorises a politically sensitive or even a politically motivated interception against an Opposition Member, or indeed against a Government Member if that Member of Parliament is opposed to the Prime Minister’s policies. We need only think of the intense debates that took place during the Vietnam war and the Iraq war. We remember that the present Leader of the Opposition had strong views about the importance of communicating with Sinn Féin at a time when that was considered intensely controversial—indeed, some at the time would have argued that it was a threat to national security. I am not defending the actions of the present Leader of the Opposition, or making any comment on them one way or another, but one can surely imagine that there may be future situations when there is intense debate on a matter of national security and a Prime Minister may be politically motivated to intercept communications between a constituent and a Member of Parliament.
I believe that it is important to uphold the exclusive cognisance of this House to regulate its own internal affairs, apart from the Government. This House is not the Government but the scrutineer of Government. To reply directly to the point the Solicitor General made, the amendment does not put MPs above the law—far from it. Our conduct is completely within the jurisdiction of normal criminal courts, and the criminal law applies to us as to anyone else. But it is vital that communications relating to our role—only to our role and to no other part of our life—as democratically elected representatives of the people, in a free country, under the Crown, be protected from Government observation and interference, just as it is vital to remove any temptation to politicise the work of the police.
Amendment 1 would solve that problem, by invoking the importance of the Speaker, an impartial office holder not beholden to any political party or indeed to the Government. You will be aware, Madam Deputy Speaker, that the office of Speaker is among the most important in the land. It ranks above all non-royal people in this realm, excepting the Prime Minister, the Lord Chancellor and the Lord President of the Council. The Speaker is endowed with his or her office by the trust placed in him by fellow Members of Parliament, and his impartiality is central to the proper functioning of Parliament. Once he has held the office of Speaker, never again can he re-enter politics—that is a clear convention of this House. He is utterly and completely impartial.
Dr Murrison
I have a great deal of sympathy for what my hon. Friend has to say, but does he share my concern that the Speaker might be seen as a rather in-house arbiter in these matters? In recent times we have seen where that leads us. Does my hon. Friend not have more confidence in the double-lock arrangement that the Front-Bench team has rightly instituted?
Sir Edward Leigh
I am perfectly happy—I think everyone in this House is—with the proposal that if the Secretary of State for the Home Department wishes to investigate communications with a Member of Parliament, the Prime Minister should always also be consulted. No one objects to that. But who appoints the Home Secretary? The Prime Minister does. They are both politicians—by their very nature, they are political animals—and members of the Executive. I have to ask my hon. Friends to look beyond the present situation; they may indeed have the utmost confidence in the present Secretary of State for the Home Department and the present Prime Minister, but they should always separate their view of those currently on the Front Bench from what might happen in the future.
All I am asking is that if the Government are taking the extreme step of intercepting communications between constituents and Members of Parliament, someone entirely non-political, namely the Speaker, should also be consulted. This is the point: he is no mere presiding officer. We do not call him “the presiding officer”, as is the case in other Assemblies and Parliaments. He is the upholder of order and the defender of the House’s privileges and immunities. I am absolutely not suggesting that he should be dragged into politics. But there is already a precedent. Have we not involved the Speaker very recently in consideration of whether amendments should be separately considered under English votes for English laws? Nobody—certainly not the Government—has suggested that that is dragging the Speaker into politics.
I am a member of the Procedure Committee, and we examined this issue in great detail. The system—I am not defending EVEL as that is not the subject of today’s debate—seems to be working fairly well. Nobody is calling the Speaker to order or complaining about his decision, but there is in a sense a double lock that seems to work quite well.
The Solicitor General
My hon. Friend makes a proper point about the Speaker’s role in English votes for English laws, and there are other certification procedures that he, I, and others know about. There is a difference, however, because that relates to the legislative process in this House, and it deals precisely with the point about exclusive cognisance and the privileges of this House in dealing with its own rules and regulations. There is therefore a difference between the points that my hon. Friend raises and involvement in an Executive decision.
Sir Edward Leigh
There may be a difference, but I do not think it is a substantive one. [Interruption.] I am delighted that you are now sitting in the Chair, Mr Speaker, because I am talking about you, which I know you always enjoy me doing.
Mr David Davis
Surely one key point is that there would be an inhibition on a Secretary of State or a Prime Minister in the process of approaching the Speaker. They may not be inhibited about talking to each other about an uncomfortable Opposition Member, or indeed an uncomfortable Government Member, but they would be inhibited about approaching the Speaker. That is not separate to what goes on in the House. The one case that we have had was that of my right hon. Friend the Member for Ashford (Damian Green), when there was an approach to the Speaker of the day, which I am afraid ended in tears.
Sir Edward Leigh
Exactly. It is an inhibition, and I presume that the Home Secretary and Prime Minister would take that extreme step only because they were convinced that this was a matter of national security. Before they took such a step, which we all agree is serious, would it do any harm to consult somebody who is obviously completely separated from politics?
Alex Chalk (Cheltenham) (Con)
Is there not an issue of accountability here? If the judgment is wrong, would it not be extremely regrettable for the Speaker to be dragged into the court of public opinion as someone who got that judgment wrong, as opposed to the Executive or the Prime Minister who could properly be hauled over the coals?
Sir Edward Leigh
I understand that example, but it can be taken to extremes. Every day of the week the Speaker makes decisions. He decides how we conduct our business and who should be called, and we could always argue that we should not give the Speaker more powers because he might make a mistake or be called to account. We are not talking about the Speaker being involved in whether we should pass a particular Bill or controversy; we are talking about a very narrow circumstance in which the Government of the day have decided to intercept the communications of a Member of Parliament. All I am suggesting is that before they take that step, they consult the Speaker.
Mr John Hayes
There are few Members of this House whom I hold in higher regard than I do my hon. Friend, but like it or not, his proposal would draw the Speaker into issues of national security. He is describing highly sensitive matters of a kind that Speakers have not historically been involved in. It would be a radical change.
Sir Edward Leigh
The Minister makes that point, but as Members of Parliament we should try to think outside the political box and our natural loyalties, and just for a moment think about what might happen in future in a time of crisis. Do we really want to codify the Wilson doctrine in legislation, and say that in future any Government—it does not matter that the Prime Minister ticks a box, because he is also a member of the Government—without any independent second guessing, can intercept those communications and act on them? I understand the Minister’s arguments and assure him that I am not trying to drag the Speaker into politics. I am trying only to protect the traditional privileges of the House. “Privileges” is the wrong word, because it conveys the impression that we are concerned about ourselves. We are not important in all this. What is important is people’s confidence in communicating with their Member of Parliament.
Mr George Howarth
The difficulty with the hon. Gentleman’s argument is that he assumes that the Prime Minister of the day, regardless of which party he is in, would take such a decision in a vacuum, but it simply could not happen that way. He would have to be satisfied first with proper legal advice that it is in the interests of national security. Secondly, he would have to be satisfied that it is both necessary and proportionate. Passing all those tests requires a lot of advice, and I doubt that any Prime Minister would take the decision lightly. Bringing any Speaker into that decision-making process means that they must be linked to that legal and security advice to satisfy themselves in the same way as the Prime Minister would have to do. I therefore cannot see the difference.
Sir Edward Leigh
I can see what the difference would be in a time of national crisis. The information will be clearly set out by the Home Secretary and the Prime Minister. I do not believe that it would be beyond the abilities of any Speaker now or in future to take an informed decision and to be convinced by the Prime Minister and the Home Secretary that the interception was not a political interference but a matter of national security.
All hon. Members agree on that—that the communications can be intercepted if it is a matter of national security—and we all agree that they should not be intercepted because it is politically expedient to do so. All I am asking is that the Speaker, who by the nature of his office does not consider political expediency, can say, “Yes. This is a matter of national security.” I do not believe that that is beyond his abilities. After all, he is ably assisted—is he not?—by the Clerk of the House and a band of parliamentary Clerks, most of whom have spent years accumulating knowledge, wisdom and experience of the ways of the House. They are not radicals or people who will take decisions lightly or wantonly. Together, they form a deposit of institutional memory, which the Prime Minister and No. 10, by the nature of their daily tasks of government and political management, can never be. They must always, necessarily, take a short-term view. That is not a criticism but the nature of the office.
Each of the privileges of this House, in addition to being daily fought for and won over the centuries, exists for a reason. Like many traditions and customs, we interfere with them at our peril. I appeal to the Minister of State, who is deeply aware of the importance of traditions and customs. We may wonder today why this or that one exists, but if we disregard them, we will soon find that the dangers they protect us from are very real.
We also may doubt the day will ever come when a Prime Minister would dare to authorise the monitoring of Members’ communications for politicised reasons, but it is therefore better to remove even the possibility of that temptation existing by simply requiring the Secretary of State to consult the Speaker. It has been said before but it is worth saying again. Nearly 375 years ago, William Lenthall reminded the sovereign that the Speaker had
“neither eyes to see nor tongue to speak in this place but as the House is pleased to direct me, whose servant I am here.”
All I am asking in amendment 1 is that that tradition be maintained. We would do well to continue to put our trust in that defender of our law and our liberties.
Joanna Cherry
The Scottish National party has tabled a significant number of amendments to parts 2 and 5, and chapter 1 of part 9, which are under discussion, but given the constraints of time I will focus my fire on only a few of them, and mainly on part 2 and the system of judicial warrantry.
The Government have put their new double-lock system of warrantry at the heart of their arguments that there are sufficient safeguards in the Bill. In the SNP, we believe that the system of warrantry is too limited in scope and seriously deficient. We have tabled extensive amendments to extend the system of judicial warrantry beyond part 2, so that it would cover warrants to obtain, retain and examine communications data and police hacking warrants. We think the nature and scope of those warrants, and the grounds on which they are granted, are very important.
Amendments 267, 268, 272 and 306 to clause 15 deal with the scope of warrants. The problem with clause 15 as currently drafted is that it permits warrants to be issued in respect of people whose names are not known or knowable when the warrant is sought. This is confirmed by clause 27, which provides that a thematic warrant must describe the relevant purpose or activity and that it must
“name or describe as many of those persons as is reasonably practicable”.
Our amendments would retain the capacity of a single warrant to permit the interception of multiple individuals, but require an identifiable subject matter or premises to be provided. We have tabled associated amendments to clause 27. Taken together, they would narrow the current provisions, which effectively permit a limitless number of unidentified individuals to have their communications intercepted.
It is not just the SNP who are concerned about the scope of the thematic warrants. We heard evidence in Committee from Sir Stanley Burnton, the Interception of Communications Commissioner, and from Lord Judge, the chief surveillance commissioner. Both expressed detailed concerns about the breadth of clause 15 as currently drafted. They said it was too wide and needed to be more focused. David Anderson QC, although in favour of thematic warrants, said that clause 15 as currently drafted is “considerably more permissive” than he had envisaged. There we have three very distinguished experts working in this field underlining the necessity of the amendments.
That is a real concern, because it takes us back to our old friend, or in our case our old enemy, bulk powers. If we create thematic warrants, communications intercepted under bulk powers can be trawled through thematically to look for groups of people sharing a common purpose or carrying out a particular activity. One difficulty with that is that it provides for an open-ended warrant that could encompass many hundreds or thousands of people. That is just not right. It is suspicionless interference. It is not targeted and it is not focused. I urge hon. Members on both sides of the House, if they are concerned about supporting an SNP amendment, to comfort themselves with the fact that it is an amendment the necessity of which has been underlined by persons as distinguished as the Interception of Communications Commissioner, the Chief Surveillance Commissioner and the independent reviewer of terrorism.
I now turn to the grounds, set out in clause 18, on which warrants may be granted, and to SNP amendments 212 and 213. The purpose of the amendments is to remove the economic wellbeing of the UK as a separate purpose for granting a warrant and to require that grounds for interception are tied to a threshold of reasonable suspicion of criminal behaviour. We have tabled similar amendments to the grounds for seeking warrants in relation to communications data under parts 3 and 4, and hacking under part 5. If these amendments are not allowed, people simply will not be able to predict when surveillance powers may be used against them, because the discretion granted to the Secretary of State is so broad as to be arbitrary.
The Joint Committee on the draft Bill recommended that the Bill include a definition of national security, which, of course, is the first ground. I call on the Government, not for the first time, to produce an amendment that defines national security. The Bill is sprinkled liberally with the phrase “national security”. The Government need to tell us what they mean by that phrase, so I call on them to define it. This is not just theoretical or, as the hon. Member for North Dorset (Simon Hoare) called it, merely a law faculty debate; it is a serious issue about language being precise so that there can be some predictability. In the past, the courts have responded with considerable deference to Government claims of national security; they view them not so much as matters of law but as Executive-led policy judgments. As a legal test, therefore, “national security”, on its own, is meaningless unless the Government attempt to tell us what they mean by it.
Dr Murrison
I am listening with great interest to the hon. and learned Lady. She will be aware that the Joint Committee on the National Security Strategy has long been trying to define “national security” but has failed to come up with an answer. Will she not accept that the term must necessarily remain loose?
Joanna Cherry
No, I do not accept that. As I say, the phrase is sprinkled throughout the Bill to justify very broad and intrusive powers, and it is incumbent on the Government to explain what they mean by it. We have heard powerful speeches and interventions from Labour Members about how these loose phrases can sometimes be misinterpreted to enable individuals who have done absolutely nothing wrong, such as trade unionists going about their lawful business, to have their livelihoods and communications interfered with. So if the Government want these powers, they have to define the grounds on which they can be exercised.
That takes me to economic wellbeing. The Joint Committee on the Bill said that economic wellbeing should be defined, but the Intelligence and Security Committee went further and said that it should be subsumed within the national security definition and that otherwise it was “unnecessarily confusing and complicated”. It was basically saying that if economic harm to the wellbeing of the UK was so serious that it amounted to a threat to national security, it would be covered by clause 18(2)(a). That was the point the ISC made. We do not need a separate category.
Mr Grieve
I intend to touch on this briefly when I speak. It is right to point out that, after making that recommendation, the Committee had the opportunity to hear considerable further evidence provided by the Government, and as a result we were unanimously persuaded that keeping “economic wellbeing” as a separate category was justified. I will amplify my remarks when I speak later, but that was the conclusion we reached.
Joanna Cherry
I do not wish to quibble with the right hon. and learned Gentleman’s conclusion, but unfortunately the rest of us have not been favoured with the basis on which he and his Committee reached it. I am yet to be convinced that the “economic wellbeing” ground is a stand-alone ground that cannot be subsumed within “national security”. If the Government can convince me otherwise, or want to try, I will listen, but I have yet to be convinced, despite having sat through many days of the Bill Committee.
Another problem with the grounds relates to the lack of any “reasonable suspicion” threshold. This recurs throughout the Bill. Our amendments would insert such a requirement. At present, intrusive powers can be authorised to prevent and detect serious crime and, in the case of communications data, even just to collect tax, prevent disorder or in the interests of public safety. These general purposes, however, are left wide open to broad interpretation and abuse if one does not also require a threshold of suspicion. A requirement of reasonable suspicion, when one invokes the purpose of preventing and detecting serous crime, would have the benefit of preventing the abusive surveillance of campaigners, unionists and victims by undercover police; police surveillance of journalists’ lawful activities; and surveillance by the agencies of law-abiding non-governmental organisations and MPs. This is not fanciful. We have seen law-abiding NGOs and MPs having their correspondence and activities interfered with in recent times, so these are not just theoretical examples.
The “reasonable suspicion” threshold was recently held to be necessary by the European Court of Human Rights in a case concerning the Russian interception regime, Zakharov v. Russia, with which many hon. Members will be familiar. The Solicitor General will try to make a distinction—if we had time, we could argue about that—but there is a widely held view that the standard set by the ECHR in that case is not met by the grounds in clause 18. I therefore urge fellow hon. Members to support our amendment to clause 18 to ensure that the United Kingdom’s investigatory powers regime meets international human rights standards.
It will be clear from what I have said already that the SNP very much shares Labour’s concerns about the monitoring of legitimate trade union activity. I understand that the Home Secretary has acknowledged those concerns and given some sort of assurance to the shadow Home Secretary. However, like Labour, the SNP will require an amendment to make that absolutely clear on the face of the Bill. If Labour Members want to push their amendment to a vote this evening, we will support it.
Stephen McPartland
I shall speak to four different sets of amendments. As I said earlier, it is a difficult Bill to support, but I acknowledge the work that Ministers and the Government have done in trying to work with Government Members and Opposition Members to produce a Bill with which we can all begin to start to feel comfortable. I am not a lawyer, but amendments 147 to 152, which stand in my name, are designed to leave out clauses that provide for the modification of warrants. In my view as a non-lawyer, these changes seem, through a major modification, to have the potential to change the key components of a warrant. I wonder at what stage a new warrant should be drafted instead. How far can the warrant be modified before it needs to become a new warrant? The warrant provisions seem to be very wide ranging and very ill defined.
The next set comprises amendments 178 to 186, which try to refine the matters to which targeted equipment interference warrants may relate by removing vague and overly broad categories, including equipment interference for training purposes. People outside this place may not be aware of it, but when we talk about “equipment interference”, we are basically talking about hacking devices that can hack into mobile phones, computers, email systems, or the apps that people use for their banking. “Equipment interference” is a nice way of saying state-authorised hacking, which is what we are talking about here. To me, this is an incredibly intrusive power, permitting real-time surveillance, as well as access to everything we store on our digital devices, from text messages to address books, calendars and emails, along with the websites people visit, which apps they use and how they use them.
The Bill also seems to me to provide for thematic hacking warrants, which amount to general warrants to hack groups or types of individuals in the UK. Hacking is not restricted in the Bill to equipment belonging to, used by or in the possession of particular persons or organisations. Even the director of GCHQ has apparently raised concerns about the breadth of the current definitions, which could apply to the equipment of a hostile foreign intelligence service. We here might say, “So what? So be it. That’s what they’re there for”, but what would we say if those warrants allowed all employees and family members of a particular company or the people who visit a particular religious venue or who live in a particular road to be hacked? Would we still say, “So what? Should we be bothered?” This may sound unlikely, but the draft equipment interference code of practice permits the targeting of people who are “not of intelligence interest”. If that is not carte blanche, I do not know what is, because it is in effect allowing hacking of the equipment of anybody anywhere in the UK or overseas, if the agencies choose to do so.
Mr Davis Davis
I am entirely in agreement with my hon. Friend on this. He says that it might not involve hacking a whole street, but it could easily involve hacking two layers of contacts. If I call 100 people, and then the people called by those 100 people are investigated, that would be a very typical intelligence exercise, pursuing the two rings of contacts. That could involve 100,000 people, most of whom have nothing to hide but could become under permanent surveillance by the state.
Stephen McPartland
I totally agree with my right hon. Friend’s point. As a Master of Science and Technology, I, of course, have never hacked anything in my life and would never dream of doing so, but it is not a particularly difficult thing to do at the moment. Many people do not appreciate that the measures in the Bill are authorising the state hacking of equipment. Combined with other measures in the Bill, this is not just about hacking the equipment of somebody who may be of particular interest as part of a terrorist organisation; we are talking about every man, woman and child with an electronic device inside the UK. That is where my concerns arise.
Suella Fernandes (Fareham) (Con)
I am grateful to the hon. Gentleman for that explanation of his amendment, but surely there are clear limits to the powers relating to equipment interference set out in clause 91. The action needs to be necessary, proportionate and in the interests of national security, so it is really not fair to say that this is a sweeping power to which any man, woman or child could be subjected.
Stephen McPartland
I am grateful to my hon. Friend for her intervention, but the reality is that schedule 4 to the Bill will give a range of other organisations the ability to access this power if they choose to do so. For example, the Financial Conduct Authority could do so in circumstances relating to the stability of the markets. A whole variety of organisations will be able to use these powers, not just the intelligence services. Police services up and down the country already use equipment interference to target criminals, for example. A whole range of powers such as these is already being used. I appreciate that the Bill is trying to put them on a statutory footing, and I understand the need to keep people safe, but we have to balance this with resources. Let us remember 9/11 in the United States, when many different agencies and organisations had information but were not sharing it. I believe that we are getting ourselves into a situation in which we will have so much information on so many people that it will be of no value to us whatever. It will be like the internet: you can put anything in, and you get 3,000 pages back.
We need a stronger legal framework if we are going to authorise the state hacking of equipment in the United Kingdom. My amendments 187 and 188 simply seek to ensure that all targets of hacking are properly named or specified. We need a more specific legal framework. Amendments 173 to177 would eliminate the power of the Government to compel third parties to assist in carrying out equipment interference. As the Bill stands, this compelled assistance will not be subject to any judicial authorisation process. The relevant organisations will be able to turn up at a company and say, “We have this warrant, so you now have to help us to hack your devices.” The company will have no choice. Clause 114 contains strict non-disclosure provisions, which are effectively gagging orders that will prevent anyone from being able to say whether they have been involved in such procedures. The Science and Technology Committee documented widespread concerns regarding company compelled hacking and concluded that
“the industry case regarding public fear about ‘equipment interference’ is well founded.”
The draft equipment interference code of practice indicates that no company in the United Kingdom, no matter how small, is exempt from these obligations.
My amendments 196 to 205 are, like the rest, probing amendments to try to get these issues debated and to make people aware of them. They would provide that national security and technical capability notices be subject to a double-lock authorisation by the Secretary of State and the Investigatory Powers Commissioner. I appreciate that new clause 10 and other Government amendments are moving some way towards achieving that, which might make what I am about to say obsolete. I do not fully understand those amendments yet, as I am not a lawyer, as I have said.
My understanding of the Bill as it stood this morning was that only the Secretary of State had the power to authorise a retention notice, a national security notice and a technical capability notice. That was not in keeping with the rest of the Bill, which requires a judicial commissioner to be involved in the review and approval of those areas. Those notices in effect enable the Secretary of State to demand that private companies act as a facilitator, depository and provider of people’s communications. We need independent oversight, and as I have said, the Government have come some way towards establishing that, in new clause 10 and elsewhere. However, technical capability notices will have an impact on UK businesses with 10,000 or more users, in that they will require those companies to build systems to store user data for use by the intelligence agencies, the police and the Home Office. That is what is written into the code of practice.
Looking at the codes of practice, one thing that jumped out at me and which I found very difficult as a Conservative was the fact that the communications service providers—CSPs—will be subject to a technical capability notice. They will have to notify the Government of new products and services in advance of their launch in order to allow consideration of whether it is necessary and proportionate to require the CSP to provide technical capability information on a new service. So, in English, and from a Conservative point of view, that will effectively mean that UK-based companies launching new products will now have to get permission from the state before they can go to market, in order to identify whether or not the state will require an ability to hack those products. Why on earth would a small business launch a new service here in the United Kingdom if those conditions remain in the codes of practice?
Ms Harman
The Joint Committee on Human Rights has four issues relating to this group of amendments that it would like to raise in the House and press the Minister on. The first relates to thematic warrants, and I want to follow up on the points made by the shadow Home Secretary and the shadow Immigration Minister on my own Front Bench, as well as those made by the hon. Member for Stevenage (Stephen McPartland) and the hon. and learned Member for Edinburgh South West (Joanna Cherry).
Our starting point is that we must remember that thematic warrants give enormous powers. Those who are authorised have the wide-ranging powers to read someone’s emails, which could include a report sent by a hospital about a medical condition, to listen to their phone calls, to see to whom they have been making calls, to hack their mobile phone and turn it into a listening device, and to look at all their information, including from their bank. The powers are very wide ranging. Such warrants are supposed to be targeted, so I urge the Minister to recognise the feeling across the House that powers are needed to make us safe, but that the Government have not yet sufficiently delineated and narrowed the circumstances in which they should be used. I urge the Government to talk to the Opposition Front-Bench team, their Back Benchers and the SNP to make the targeted powers more targeted.
Mr Winnick
What my right hon. and learned Friend says sums up the position. The Opposition Front-Bench team has managed to negotiate concessions from the Government. I accept their good intentions—the Opposition Front Bench—but the fact is that the powers that the Bill will give the security authorities are unacceptable despite all the concessions, which is a good reason for voting against Third Reading.
Ms Harman
Let us see whether the Minister and the Government will recognise that we are all trying to get the same thing here. We are trying not only to keep the public safe, but to protect privacy. However, we do that—my hon. Friend will recognise this—in the knowledge that the security services do get tempted to overreach their powers. As night follows day, that is what happens. There are so many examples, after which people think, “How on earth could that ever happen?” It happens because when the security services have powers, they get tempted to overreach them. That is why safeguards and narrow definitions are so important. For example, I was subject to security service surveillance, not because I was subversive but because I was fighting for human rights, women’s rights and workers’ rights. The point is that if they can do it, they will unless there is proper delineation, so I add my voice to those who argue for a narrower definition of thematic powers.
I also highlight the concerns of the Joint Committee on Human Rights to those who query the point about major modifications. The Government have gone such a long way to ensure that warrants are properly issued, so why are they driving a coach and horses through the proposal by saying, “After the warrant has been issued, if you feel like it, you can have a major modification”? Trust me, such modifications will not narrow the scope of warrants, they will only widen them. The Government have moved to an extent and have said that major modifications will be notified to the judicial commissioners, but it is not good enough just to tell them; there needs to be a proper approval process. The Government should look again at the proposal.
As for legal professional privilege and the constitutional issues that we should bear in mind when thinking about what are described as privileges, we must be extremely careful with such areas. Lawyers are able to hold the Government to account and that is called the rule of law. We do not want to give the Executive the ability to interfere unjustifiably with the rule of the law by undermining people in the legal exercise of their rights. I agree with those on the Opposition Front Bench and others who have said that the Government should go back to the Bar Council and the Law Society to ensure that legal professional privilege is properly sorted out.
Turning to my main point, I am sorry that the hon. Member for Gainsborough (Sir Edward Leigh) is not currently in the Chamber because I largely agree with him, but the Joint Committee on Human Rights has a better way of dealing with the matter. What we need to remember, as MPs, is that this is not just about our constituents being able to come to talk to us confidentially, although we should absolutely defend that. Let me just give one example on that. I had MI6 in my constituency and the cleaners there were about to be privatised, and then sacked or made redundant. They lived in my constituency but they had signed the Official Secrets Act and been told that they were to talk to nobody and were not allowed to be in a union. They came to me very upset, with one of them crying. They said, “We don’t know whether we can speak to you.” I said, “You can speak to me.” They then said, “We think that telling you what we are going to tell you is against the law.” I said, “It doesn’t matter what you are going to tell me. Your legal right, as my constituents, to tell me something that I need to know trumps everything.” They then said that they were going to be made redundant, and so I went along to see someone—I believe it was the director general of MI6—handily taking with me the then deputy general secretary of the Transport and General Workers Union, my hon. Friend the Member for Birmingham, Erdington (Jack Dromey). We got them all redundancy payments and that was sorted out, but I do not want to digress.
I think that the right of individuals to speak to their MP is important, but we face an even bigger constitutional issue, which relates to the fact that we are here not just to listen to what our constituents say, but to hold the Government to account. They are the Executive, and so the idea that the Executive has the power to hack into the emails and listen to the phones of those who are supposed to be holding them to account—to do all of this—offers a big prospect of the Executive abusing their power and undermining the legislature’s ability to hold them to account. The person in pole position to defend the importance of the legislature holding the Government to account is not the Prime Minister, who is the pinnacle of the Executive. We are here to hold the Prime Minister to account.
I appreciate that the Minister has said, “Make the Prime Minister consent to all our emails being hacked, all our phones being listened to and everything else”, but that gives me no reassurance at all, because the Prime Minister is the wrong person for this. We have gone higher up the tree, but we have gone up the wrong tree, because the person who is there to protect us in doing our job of holding the Government to account, including the Prime Minister, is the Speaker. That was recognised in relation to the situation of the right hon. Member for Ashford (Damian Green) when there was the question of the warrant being issued, so this is not unprecedented—the recognition that it is the Speaker who has to protect our rights to hold the Executive to account, which is what we are actually here for.
My Committee discussed this issue at great length. We do not suggest that we make the Speaker an arm of the state and make him start looking at warrants for all of us, but we go further than the hon. Member for Gainsborough, who says that the Speaker should be notified. We say that the Speaker should be notified sufficiently well in advance that if he or she feels that it is right to do so, they can go to be heard by the judicial commissioner to make their views known, and so they can have an intervention in the process. I am certain that if it was known that the Speaker would be notified and have the opportunity to speak about it to the judicial commissioner, that would make the security services much more cautious before they actually went for warrants to intercept all the communications that we are having.
Mr John Hayes
I could make two points about what the right hon. and learned Lady said. She says that the Speaker should be involved but not implicated, but I do not see how the Speaker would not be implicated and become an “arm of the state”—that is not a phrase I would have used, but she used it. The Speaker would by necessity become implicated because he would have to know the grounds on which the Prime Minister or others were acting. I do not really understand how she can claim that the Speaker can be involved but not implicated.
Ms Harman
It is true that we are sending part of the process to the Speaker, but we are not giving them the power to authorise. It would be wrong to make the Speaker be part of the authorising process—someone who applies for the warrant, or someone who, like the judicial commissioner, has to authorise the warrant. What we are talking about is notifying the Speaker, but in sufficient time so that if they notice that it is becoming very widespread, they have the opportunity to go before the judicial commissioner and say, “Look, this is going on too widely.”
Ms Harman
No, I think the Speaker would have to know the basis of the application if they wanted to; otherwise, how could they go before the judicial commissioner and say it was unacceptable? If people say, “Goodness me! That would be telling the Speaker information that would be useful in the hands of Daesh or al-Shabaab,” we would be in trouble anyway if the Speaker were the wrong sort of person to have it. I take a slightly different approach from the hon. Member for Gainsborough. He postulated the issue as politics, which is the Government and the Prime Minister, versus non-politics, which is the Speaker. It is not politics versus non-politics; it is the legislature versus the Executive. That is how we should think about it.
Ms Harman
I will, but I have a feeling that, sadly, I will disagree with my right hon. Friend, because I heard his intervention earlier and think that he too is barking up the wrong tree. To find myself barking up the same tree as the hon. Member for Gainsborough is a very sorry state of affairs, but I have the hon. Member for Stevenage (Stephen McPartland) on my side.
Mr Howarth
It is typical of my right hon. and learned Friend to get her defence in before hearing the attack. She has been a Law Officer, and when she was Solicitor General I had every confidence in her to be able to sort out the legal advice she gave as Solicitor General from whatever political position she might have taken. Why would she doubt that a Prime Minister could do the same?
Ms Harman
Because the Prime Minister is the Executive, and we need the separation of powers and the balance of powers. I disagreed with the hon. Member for Gainsborough when he was talking about what a great guy the Prime Minister is, so it is not a problem with him, but it might be with the next one. I am on my fifth Prime Minister now and they all have something in common: they regard being held to account as a bit of a nuisance. They do not welcome scrutiny—it is just the nature of the beast. We have to take that into account and accept the fact that, for the rule of law, we have to protect lawyers; for freedom of speech and expression, we have to protect journalism; and for holding the Executive to account, we must protect our rights in this House.
The Solicitor General
I am grateful to one of my predecessors for allowing me to intervene. What if, in a hearing, the Speaker agreed with the application and said, “Yes, go ahead—apply for the warrant. We don’t have any objection to it.”? How would a Member of Parliament hold the Speaker to account for a decision that affected them?
Ms Harman
The point is that the system has accountability for the Home Secretary for issuing the warrant through the judicial commissioner. We are talking about additional protection by way of the Speaker. The Speaker would not be supporting an application; the Speaker would simply be notified, and if they had no objection, it would go through and they would have nothing to do with it—but the Speaker would have knowledge. That is true: the Speaker would have knowledge of it.
In a difficult situation, how do we make sure that we do not put all our rights as a legislature into the hands of the Executive? I appreciate that the Government have tried to work out ways to strengthen the safeguards, but the issue is not just the strength of the safeguards; it is the appropriateness of them. The Prime Minister is not an appropriate safeguard to protect the rights of us in this House to hold him to account. I simply ask the Government to look again.
I congratulate the Government, the Labour and SNP Front Benchers and Back Benchers for working constructively on this. Ultimately, we all want the same thing: we want to be able to walk the streets safely and sleep safely in our beds, but not have the Executive tempted to abuse their power.
Mr Grieve
It is a pleasure to follow the right hon. and learned Member for Camberwell and Peckham (Ms Harman). I shall resist being dragged away from the specific issues on which the ISC has tabled amendments. However, the Government have moved substantially on some key issues, providing greater protection, for which we should be grateful. On the point made by the right hon. and learned Lady, I confess that I find the idea that the Speaker could provide the necessary safeguard, when one looks at the surrounding circumstances, difficult to follow. Ultimately, the double-lock mechanism provides far greater protection. We have to accept that there are scrutiny and oversight mechanisms in place that mean that if this became a common issue, it would surface properly in our system, with both the Interception of Communications Commissioner and, ultimately, the ISC.
I understand the problem that the right hon. and learned Lady has raised. I am not unsympathetic to her anxieties, which have also been expressed by my hon. Friend the Member for Stevenage (Stephen McPartland). However, I do not see how the mechanism that has been proposed and which involves the Speaker would, in practice, provide the safeguard that the right hon. and learned Lady seeks.
Amendment 25 was tabled by members of the ISC and deals with thematic warrants, on which there has been quite a lot of discussion. I have absolutely no doubt that thematic warrants have the potential to intrude into the privacy of a great many people. In the ISC report on the draft Bill, we recommended that that greater intrusion should be balanced and constrained, and suggested that those warrants should be limited in duration to the period for which they could be authorised. We then took considerably more evidence from the agencies on thematic warrants, and they argued persuasively that if thematic warrants were issued for a shorter time, there would not be sufficient time for the operational benefits of the warrant to become apparent before they had to apply for it to be renewed. We recognised that the Secretary of State and the commissioner would therefore have insufficient information on which to assess necessity and proportionality.
We therefore accept that limiting the duration of a thematic warrant is not the most effective way to constrain it. Nevertheless, we remain of the view that clause 15 as currently worded is a very extensive power indeed. Subsection (2) makes it clear that a targeted interception warrant is turned into a thematic warrant if it can relate to
“a group of persons who share a common purpose or who carry on, or may carry on, a particular activity”.
Giving that its ordinary English meaning, it immediately becomes apparent that the scope is potentially enormous. However, I want to make it quite clear that we have not seen any examples of that power being misused in any way, which presents the House with a challenge. To try to meet that challenge, the Committee’s suggestion, after reflection, is that it might be possible to include an additional constraint by removing the word “or” and adding “and” after the words, “sharing a common purpose”, to try to narrow the scope of the provision. That is why amendment 25 was phrased in that way.
Since then, as often happens in dialogue between the Committee and the agencies, we have received further information. I saw persuasive information this morning that suggested that if we adopted that approach, it would have the unintended consequence of making perfectly legitimate operations by the agencies impossible, and would place a great burden on them, because the use of a straight, targeted warrant based on the particular person or organisation, or a single set of premises, could not meet the necessity and proportionality test of having to do something further. I tabled this probing amendment in order to contribute to the debate, but I still take the view that there is an issue here that the Government need to consider carefully. It crossed my mind as I listened to the various submissions that one possible route might be the creation of a protocol to be used by the agencies—one that could be seen by the Intelligence and Security Committee and that would provide reassurance that the wide scope of the wording could not be open to abuse.
The point was perfectly reasonably made to me—I think by the Home Secretary—that the idea that the Interception of Communications Commissioner would tolerate an abuse that went outside the necessity and proportionality test was, in practice, rather unlikely, but the issue cannot simply be ignored. Something more is needed, because on the plain wording of the statute, the scope that “common purpose” and “a particular activity” allow seems excessive. There must be some constraint, and I leave it to the ingenuity and common sense of the Ministers to come up with a solution to this real problem.
The Solicitor General
I think my right hon. and learned Friend can see the problem: if we limit the provision too much—to “common purpose”—we might end up being able to deal only with conspiracy-type offences, as opposed to individual ones. We are trying to be very careful as to the wording, and it certainly is not the Government’s intention to do anything by sleight of hand to create a definition that would be unacceptably wide—far from it.
Mr Grieve
I am grateful to the Solicitor General, and I have no reason to disagree with his analysis of the way in which this matter has been approached. I also have no reason to disagree with him about the necessity of having thematic warrants in addition to warrants targeted at premises, individuals or organisations, but the question is how that reassurance can be provided. I hope very much that the Government can go away and give this issue some thought. I suspect it will arise in the other place, when these provisions are debated there. It is important, and I think that a solution can be found, but I accept that, although the amendment we have tabled would provide one, it would also place the agencies in difficulty.
Mr John Hayes
Since my right hon. and learned Friend is inviting me to employ my ingenuity, I will try to do so. This is, in essence, about proportionality. We had quite a lot of debate earlier about necessity, but proportionality matters too. In determining what is reasonable—
Mr Speaker
Order. I wish to listen to the mellifluous tones of the right hon. Gentleman, as some Members do, and people listening elsewhere might conceivably wish to hear his sonorous tones. We would be assisted if he faced the House.
Mr Hayes
I think this is about proportionality. The answer to my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) is that yes, of course, in establishing the character of the proportionality and therefore the range he described, we may need to think about the sort of protocol he set out.
Mr Grieve
I am grateful to the Minister, and I leave the matter there.
I turn now to amendments 19, 20 and 21, which deal with the renewal of warrants. They may appear somewhat complicated, but they deal with a very simple issue. Warrants for interception last for up to six months. Under clause 29, the warrant can be extended by a further six months at any time before the original warrant expires. That creates a loophole because it would theoretically allow for a warrant to be renewed immediately after it was issued, thereby permitting interception for 12 months. That is clearly not what the Bill intends. The Secretary of State might well argue—logically—that the commissioner would never approve such a renewal, and that she would not either, but this is nevertheless a loophole that can and should be closed, and these amendments would ensure that it is. I hope very much that the Government can accept them.
I should mention that the amendments in my name relate only to warrants for interception and bulk interception. I would be grateful if the Minister could assure the House that, if the Government accept my amendments, that acceptance will be extended to other consequential amendments of a like character, to ensure that the power cannot be abused elsewhere.
Amendment 16 relates to clause 45 and interception in accordance with overseas requests. The clause gives effect to the European Union’s convention on mutual assistance on criminal matters and permits an overseas authority to request the support of the United Kingdom in undertaking the interception of communications. Curiously, and probably accidentally, it does not repeat the protection that exists in the Regulation of Investigatory Powers Act 2000, which ensures that requests can be made only where a person being intercepted will be outside the United Kingdom. That seems to us be another loophole that ought to be dealt with. Although the Government had indicated that it could be dealt with in secondary legislation, the Intelligence and Security Committee do not consider that to be satisfactory. It is far too important an issue to be left to secondary legislation; it should be dealt with in the Bill. If our amendment is accepted, the matter can be resolved without more ado.
Finally, may I touch on an issue that has been raised by the hon. and learned Member for Edinburgh South West (Joanna Cherry) and others, namely economic wellbeing? When the Intelligence and Security Committee first came to consider the issue as a subset of national security in our initial evidence-taking sittings, we came to the conclusion that it ought to be possible to remove economic wellbeing as a criterion altogether. That is why we made the initial recommendation that economic wellbeing, so far as it is relevant to national security and relates to people outside the British islands, be removed from the Bill as grounds for interception. We took the view that it could all be safely contained in the subset of national security. After we published our report, the Government provided us, through the agencies, with additional evidence regarding their reasoning for including it as a separate ground. They also provided us with a number of examples of where it was being or might be used, which illustrated areas where it was useful to have it as a separate category.
Mr George Howarth
Although I am conscious that the right hon. and learned Gentleman will not, for obvious reasons, be able to go into detail on all of the examples that were given, one thing that can be avowed under this particular rubric is critical national infrastructure, which is an obvious area where the public and the state need to be protected.
Mr Grieve
The right hon. Gentleman is absolutely right. The consequence of damaging national infrastructure would be to cause a severe economic shock to the United Kingdom. At the end of the day, the most persuasive argument of the lot was that listing economic wellbeing separately added transparency as to the purposes for which an investigatory power was being sought. We came to the conclusion that it would probably assist the judicial commissioners in their consideration of the necessity and proportionality of the warrant, precisely because it highlighted that it fell within a category in which economic wellbeing was present; it was therefore in practice likely to be subject to very detailed scrutiny. For all those reasons, we did not table a further amendment on that point.
Mr Alistair Carmichael
Given the lateness of the hour and the number of right hon. and hon. Members still wishing to catch your eye, Mr Speaker, I hope to confine my remarks principally to those amendments that stand in my name, but I would also like to pick up on one or two more general points.
Mr David Davis
It is a pleasure to follow the right hon. Member for Orkney and Shetland (Mr Carmichael).
The Bill is undoubtedly necessary, in that it was preceded by interception and surveillance based on something like 66 different legal bases, and that was incomprehensible to almost anybody. I had hoped that the Bill would cover all the previous legal bases, but it does not do so. There are still matters that are not covered by the Bill. For example, the Intelligence Services Act 1994 is still avowed in the Bill, and is used as a mechanism for which it was not intended. I know that because I took that Bill through the House. I know what it was intended to do, and it was nothing like what it is now used for.
Since I have a very limited time, I will press on, but let me say this. Listening to most of the speeches on this group of amendments, I agreed with virtually all of them, particularly the points about modification. The right hon. and learned Member for Camberwell and Peckham (Ms Harman) and my hon. Friend the Member for Gainsborough (Sir Edward Leigh) made a very good point—whatever the mechanism—about the flaws in the current Wilson doctrine, as now laid down in the Bill. There are therefore many changes yet to come, and I imagine they will come in the Lords, or indeed in the law courts.
In the next few minutes, I will focus on the amendments in my name, principally amendments 208 to 211, which deal with the issue of the so-called double lock. Until the change proposed today, it was more like a double latchkey because it was not really as strong as it was represented to be.
Before I go into that matter, I should tell the House that I take the view that the whole interception strategy used by this country is, in any event, flawed. We are virtually the only serious country in the world that does not use intercept evidence in court. The arguments made by the Government and the agencies are ones that could equally be made anywhere in the world. No other authority follows that. The fact that interception evidence is not used in court is one of the reasons why rather sloppy legal disciplines apply to the use of interception, particularly relying on the Home Secretary to authorise interceptions.
Now, there are practical, principled and political reasons, as well as reasons of accountability, for that being wrong, full stop. The practical reason is that the Home Secretary has admitted to authorising about 2,500 of these things a year. That is 10 a day—not at most, but on average. On Second Reading, I asked her to tell us how long she took over any of them, but she refused and sidestepped the question. When this situation became public, after the Anderson report, I had letters from policemen who were involved in the creation of warrants who said that it was simply impossible and that 10 a day could not be done—a judge could not do 10 a day. That is the first problem.
The second problem is that we take our judgment from the current Home Secretary. She is very unusual. She has been in office for six years. That is incredibly unusual, and a great reflection on her. But a typical Home Secretary is not there for six years. I was shadow Home Secretary for five years and faced four different Home Secretaries—one and a half years apiece, roughly. What are we looking at, then? We will have someone who has typically been in office for a year or so making really serious judgments in a real hurry. That is not the way to make the sort of balanced judgments that we expect when we are balancing the privacy of our citizens on the one hand and their life and security on the other.
The second reason is one of principle. I take the view, as did David Anderson, that it is perfectly proper for Ministers of the Crown to approve anything that would involve a foreign intercept, let us say, that would create a political problem for the country. I see no argument whatever, other than the vestiges of royal prerogative, why Ministers should make judgments about warrants brought against citizens of this country. I can see nothing that justifies that. Our greatest ally, America, views it with horror. It causes us problems with American companies when those warrants are presented. America uses a solely legal process, which would be my preference.
The arguments on accountability are frankly laughable. I know of no Minister who has stood at that Dispatch Box and defended the issue or non-issue of a warrant—not one—and it is arguably not legal. The argument put in Committee, I think by the Minister of State, was that Ministers are accountable to the Intelligence and Security Committee. The current members of that Committee include some of my oldest and dearest political friends, but I have to tell the House that I would not trust a Committee that had to be nominated by the Prime Minister, that met in secret and whose reports were redacted to hold the Executive to account. I could go into the history. It missed the dodgy dossier, the torture and the mass surveillance, and got 7/7 wrong. It is not a Committee we can rely on for accountability until it has proved itself over many more years.
A politician should not sign these warrants off. We are not going to win that argument today, so what is the next best step? It is that a judicial process, based on the evidence—always, not optionally—be the check on the issue of these warrants. My preference is that that should happen before the Home Secretary sees them, not after. That might cut 2,500 down to 2,000, and make things a little more practical. The simple truth is it would be a better way in any well-designed system.
My amendments aim to improve the Bill in that regard. The Government have come up with a manuscript amendment that the former DPP, the hon. and learned Member for Holborn and St Pancras (Keir Starmer), says he thinks is acceptable. Until I have taken advice I cannot make a judgment on that, but for that reason, I will not press my amendments today. But I say to Members on the Front Bench that if their arguments on this issue do not stand up they will either collapse in the Lords or they will collapse in the law courts—one or the other. That is pretty certain.
A number of other issues have been raised today. Those include legal privilege, which as I say I think is the most important corrosion that is going on. We have heard about the Wilson doctrine, and about journalists and trade unions. It is now a wider issue. One thing that has come up in the past few years has been the misbehaviour of police forces and agencies with respect to demonstrators—the legitimate, proper and democratic operations of the Green movement, for example; there is also the blacklisting that the right hon. Member for Leigh (Andy Burnham) referred to. All those things need to be dealt with, and if the privacy guidance and clauses that are effectively built into the Bill do not do that, we must find a way to ensure that we do not just solve the problems of history, but that we solve problems for the future.
Mr Speaker
I will call Mr Cox briefly, but I wish to call the Minister no later than 10.50 pm.
Mr Cox
I shall be very brief, Mr Speaker, and I am grateful to you for calling me at this late hour. I wish to address clause 25 and legal professional privilege. In what circumstances, other than the iniquity exception, will legal professional privilege be overridden? In introducing his remarks, the Minister said, I think, that there was some margin where legal professional privilege could be overridden, even where the iniquity exception did not apply. That would be a radical and fundamental change to the legal protection given to the privilege of those conversing with and confiding in their lawyers. It would be unprecedented, and contrary to the decisions of the highest courts in this country. Where does the distinction lie in the Minister’s mind, and how would that square with current legal authority on the subject?
Mr John Hayes
I only hope that your earlier remarks about my style, Mr Speaker, can be matched by my substance.
Let me deal with the last contribution first. My hon. and learned Friend the Solicitor General made it clear that these are matters of continuing consideration, and further discussions are to be held. My hon. and learned Friend the Member for Torridge and West Devon (Mr Cox) is right to say that we have not yet got to where we want to be, but I understand the weight and significance of his remark about limits on privilege, which will certainly be included in any consideration that we make following those discussions. I do not want to anticipate those discussions tonight, but, as the shadow Secretary of State recommended, we will engage in them without delay, and conclude them on the basis of adding to the Bill in a way that is sufficient to protect legal privilege.
A number of Members on both sides of the House emphasised the importance of the Bill per se. It is important because it provides law enforcement and security and intelligence agencies with the powers they need to keep us safe, and it does so in a way that makes those powers transparent, while also adding to the checks and balances that are vital in the defence of private interest. It therefore radically overhauls the way in which such powers are authorised and overseen, in particular through the introduction of the double lock for the most sensitive powers. This is a radical change—perhaps the most radical change of modern times in these matters.
The Bill also ensures that these powers are fit for the digital age. As the Chair of the ISC, and others, have said, much of what is done now arises as a result of a series of pieces of legislation that I suppose one could call reactive. They were consequent on the need to provide those who are missioned to protect us with what they require to do so. The Bill draws those powers together and makes them more comprehensible and transparent, which adds to the oversight and safeguards that make up the checks and balances I have described. This is an important Bill, and it is therefore important that we get it right.
That brings me to my second substantial point, which is about the spirit of our consideration. This debate has been conducted in a way that I think does credit to this House, and that is largely—it is unusual to hear a Minister say this, so I wish to emphasise it in the style that you recommended earlier, Mr Speaker—due to the Opposition. The Opposition make choices about how they scrutinise the Government, how they hold the Government to account, and how they deal with legislation on the Floor of the House and in Committee. Those judgments are fundamentally important, not only for the health of the House and our democracy, but for the interests of our people. The Opposition and the Government have worked together on the Bill. If that causes pain to the right hon. Member for Orkney and Shetland (Mr Carmichael), so be it, because if we end up with a Bill that is better than it started—and I believe we will end up with a Bill that is considerably better—I take the view that we have done our job as well as we could reasonably be expected to do it.
To that end, as we have said a number of times this evening, we continue to look at these matters. Clearly, the House of Lords will want its say—it is right that it should—and will contribute to further scrutiny, but the spirit that has imbued all we have done until now is important in a Bill that, frankly, any Government of any colour would have introduced, not just because there is a sunset clause on previous legislation, but because the Government know that it is necessary for the powers to be updated so that they are fit for purpose, and for the safeguards to be updated in accordance with that.
Let me deal with some of the specifics—I want to save sufficient time to deal with the salient issue of trade unions, which the shadow Secretary of State spoke about with such passion. Modifications were mentioned by both Opposition and Government Members. It is important to emphasise that the Government have considered the concerns raised in Committee—that point was made by my hon. Friend the Member for Stevenage (Stephen McPartland), Opposition Front Benchers and others.
As a result, we have introduced a number of significant amendments to make it clear that a warrant against a single person cannot be modified into a thematic warrant; to require all major modifications to be notified to a judicial commissioner; and to ensure that the Wilson doctrine and legal professional practice safeguards apply to urgent modifications, so that the double lock, with all that that suggests, applies too.
Those amendments are responses to matters raised in Committee, to ensure that the warranting system is consistent. I entirely accept the point that it would be completely unacceptable to have a robust system for issuing warrants and a less robust system for modifying them. Warranting has to be consistent throughout, and there can be no back-door way of weakening the process. That is not what the Government intend and not what we would allow. We have made those changes but, as I have said, we are happy to consider those matters carefully—I have heard what has been said tonight by Members on both sides of the House about what more might be done.
The hon. and learned Member for Holborn and St Pancras (Keir Starmer) and others have made the argument repeatedly that more should be stated in the Bill. That is what the manuscript amendment does. On that basis, I am grateful for the comments made by the shadow Secretary of State and the shadow Minister in welcoming the amendment.
My right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) tabled amendments on behalf of the Intelligence and Security Committee. Amendments 15 to 17 would add another condition to clause 45, which provides for circumstances in which a telecommunications operator may intercept communications in response to a request made by the international agreement. The additional condition would require that interception must be for the purpose of obtaining information about the communications of people who are known or believed to be outside the United Kingdom. That amendment would replicate the current position in RIPA and, I agree, would provide valuable assurances. As drafted, the amendment contains minor, technical deficiencies, and for that reason, as my right hon. and learned Friend will understand, we will not accept it.
Mr Speaker
Order. I know the Minister of State is greatly enjoying his oration, but I am conscious of the fact that the clock in front of him is not functioning, and I want him to know two things: first, that he should face the House, as we continually exhort him to do; and, secondly, that he has a further seven minutes in which to excite the House.
Mr Hayes
Seven minutes of pure joy, Mr Speaker.
The Government will bring back further amendments to do what my right hon. and learned Friend intends.
Amendments 19 to 23, also tabled on behalf of the Intelligence and Security Committee, seek to prohibit a targeted or bulk interception warrant being renewed for more than 30 days. I do not foresee any circumstance where such a renewal application would be approved by the Secretary of State or judicial commissioner, but this is another matter that I agree could be clearer in the Bill. As with the previous amendment, we will revisit this and table an amendment in the other place.
I am less convinced by the argument my right hon. and learned Friend makes on amendment 25. The amendment would prohibit warrants being sought against suspects who are carrying out the same activity but who may not share a common purpose. In my judgment, a restriction of this kind would have a material impact on current operations. It would, for example, prohibit the targeting of an online forum that is used predominantly—but not exclusively—by child abusers, because the agency could not be certain that everyone accessing the forum was doing so for a common purpose. I have profound reservations about that amendment. I understand the sense of it and I understand why it has been tabled, but I do not think the Government can accept it. I do not want to give the impression that the Government accept any amendment, regardless of what we think about it. That is not our style, however conciliatory we might be.
Mr Grieve
I did not quite follow what my right hon. Friend meant by that. I exhorted him to give the matter a little further thought and suggested there might be some ways in which it could be dealt with. I very much hope his answer was not suggesting that he was ruling that out, because that might place me in the position of wanting to put the amendment to the House.
Mr Hayes
“Very much thought” is my middle name. Actually, that is several middle names, isn’t it, Mr Speaker? I will of course do that. Indeed, I thought the point my right hon. and learned Friend made about ways in which we could achieve what he sets out to do was well made, as I said in an earlier intervention.
Power is legitimised only by the means by which those who exercise it are held to account. The health of our open society relies on the acceptance that those with whom we differ should be free to make their case, campaign or crusade. The Labour Opposition tabled an amendment on trade unions, and I want to be crystal clear about our response to it: it would neither be proportionate nor lawful for the security or intelligence agencies to investigate legitimate trade union activity. However, there are good reasons for seeking to put the matter beyond doubt. That is what amendment 262 seeks to do.
I know that this is a matter of profound concern to the Labour party, but again let me be crystal clear: it is a matter of profound concern to me, too. Trade unions make a vital contribution to the free society I mentioned a moment ago. Working people would be considerably worse off if it were not for the activities of trade unions through the ages. My father was a shop steward, my grandfather was the chairman of his union branch and I am proud to be a member of a trade union myself.
Let me do something else that is rarely done in this House. I have already praised the Opposition and commended the way they have gone about their scrutiny of the Government’s proposals; now I am going to accept the amendment that stands in the name of the Opposition.
Gavin Robinson
I am concerned about the terminology used in amendment 262. It refers to the British Islands, which include the Isle of Man and the Channel Islands. If the Minister accepts the amendment, are we legislating outwith our jurisdiction?
Mr Hayes
Notwithstanding that technical point, which I will happily deal with after the debate—I am grateful to the hon. Gentleman for making it—I will certainly accept what the Opposition have proposed as a matter of principle. It seems absolutely right that they have brought it to the House’s attention, and they can perfectly properly claim it as a victory, because I am persuaded of the need to do this. It was not in the original Bill, but it will be in the Bill as it goes forward. In that spirit and that mood, it is vital to understand that the Bill is in our national interest and there to promote and preserve the common good. It is therefore right that it make further progress.
Andy Burnham
The Minister’s comments at the Dispatch Box will have given hope to thousands of trade unionists in this country. Their legitimate role has been properly recognised by him at the Dispatch Box—long may that spirit continue from the Government Benches!
“The chairman, or a deputy chairman of the Independent Police Complaints Commission | A member (other than the chair or a deputy chairman) of the Independent Police Complaints Commission who is designated by the chairman for the purpose. | A person designated under paragraph 19(2) of the Schedule 3 to the Police Reform Act 2002 to take charge of, or to assist with, the investigation to which the warrant under section 96(1) relates (or would relate if issued).” |